SZHUE v Minister for Immigration
[2006] FMCA 402
•9 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHUE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 402 |
| MIGRATION - Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of Bangladesh claiming fear of persecution by fundamentalists – credibility issue – merits review. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.424, 474
| Applicant: | SZHUE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 3622 of 2005 |
| Delivered on: | 9 March 2006 |
| Delivered at: | Sydney |
| Hearing date: | 9 March 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondent: | Mr Jordan |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,500.00.
I allow eight (8) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3622 of 2005
| SZHUE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a review of a decision of the Refugee Review Tribunal.
Background
The Applicant is a citizen of Bangladesh who arrived in Australia on 27th July 2005. On 29th July he applied for a protection visa. On
26th August 2005 a delegate of the Minister refused his application for a protection visa, so the Applicant sought a review of that decision by the Refugee Review Tribunal. He filed that application on 29th August 2005.
The Tribunal wrote to the Applicant inviting him to attend a hearing. The Applicant attended the hearing, accompanied by his brother.
He also provided a Written Submission on 20th October 2005.
The Tribunal made its decision on 27th October and handed its decision down on 17th November 2005. The Tribunal affirmed the decision of the Minister's delegate not to grant a protection visa to the Applicant.
The subject of the Applicant's claim was that he was subject to "political and social discrimination" in Bangladesh. He said that he had worked for the United Nations and he had faced problems with a fundamentalist group because he was working with women's group for legal aid support and empowerment of women and for tribal people interested in Christian religious support. He had difficulties with fundamentalist groups and was subjected to attacks. The problems that arose from the fundamentalist groups was such that he was not able to obtain work with organisations in Bangladesh, so he decided to seek employment in South Korea.
He said that he had returned to Bangladesh in 2004 but was again attacked. This obliged him to return to South Korea. He had been involved with the Awami League whilst a student, and was subject to attack by opposing political parties. He had in fact been abducted by political opponents and tortured. When he attempted to report the matter to the police, he did not receive any assistance from them. He feared that he would be targeted by the government in the future because of his involvement with the Awami League in the past. He had worked for the United Nations in India and Sri Lanka and was interested in establishing his own development agency for doing his own development work back in Bangladesh.
The Tribunal’s findings and reasons
When the Tribunal handed down its decision, it did not accept as credible the Applicant's claims that he was attacked by fundamentalists when he last visited Bangladesh. The Tribunal said that when the matter was discussed with the Applicant at the hearing, it became apparent to the Tribunal that the Applicant had not been attacked and that he had no direct contact to the persons to whom he had referred as fundamentalists, nor did he know their identity. He was not able to tell the Tribunal the exact nature of the action of these people against him or what they planned to do in the future. As a result, the Tribunal found that the threat to the Applicant was either imagined by him or exaggerated for the purpose of enhancing the application for a protection visa. The Tribunal said that he had no meaningful information on which to conclude that he was under attack by fundamentalists, or anyone else in Bangladesh during his last visit.
Accordingly, the Tribunal did not accept as credible the Applicant's claim that he was attacked or under threat when he visited Bangladesh in 2004. That said, the Tribunal did accept the claim by the Applicant that he had been attacked by political opponents on an occasion when he was a student, and on two occasions when he had worked as a development officer. Nevertheless, the Tribunal said that the information provided by the Applicant did not support his claim that fundamentalists were targeting workers or persons who had previously been involved with the Awami League.
The Tribunal was satisfied on the evidence before it that the Applicant was not at risk of harm by fundamentalists or anyone else in Bangladesh on the basis of having previously been involved with the Awami League or having worked as a development officer.
In particular, the Tribunal was satisfied that the three attacks that the Applicant had suffered involved a particular set of circumstances which no longer existed and would not be replicated in the reasonably foreseeable future. The Tribunal found that the Applicant could participate in the Awami League as he did before and could work as a development officer without adverse interest from fundamentalists in Bangladesh. The Tribunal was satisfied by information from external sources that there are many non-government organisations in Bangladesh and other development agencies who were working to empower women and to elevate the status of women in society.
The Tribunal was satisfied that those activities continued despite opposition from some groups within Bangladesh. The Tribunal found, therefore, that the Applicant did not have a well founded fear of persecution in Bangladesh for reasons of political opinion, membership of a particular social group, or any other Convention reason.
Application for judicial review
The Applicant sought a review of the Tribunal's decision in this Court. He filed an application on 9th December 2005 and an Amended Application on 15th February 2006. He also filed an Outline of Submissions on 17th February in which he addresses the contentions contained in his Amended Application. I have had regard to those documents and I have had regard to the Outline of Submissions prepared on behalf of the First Respondent Minister, by Mr Jordan of counsel.
The Applicant contends that the Tribunal committed jurisdictional error in three ways:
i)that it constructively failed to exercise its jurisdiction under the Act;
ii)that it acted in excess of its jurisdiction; and
iii)that it failed to ask a material question that it was required to ask.
The Applicant has provided particulars of each of those three claims. In respect of ground 1, the claim that the Tribunal constructively failed to exercise its jurisdiction, the Applicant states that there was no evidence to support the Tribunal's finding that:
i)the threat to the Applicant was imagined by him; or
ii)the threat was exaggerated for the purpose of enhancing this application.
The threat referred to in ground 1 and in the particulars, relates to the threats that the Applicant said that he had received from fundamentalists upon his return to Bangladesh after he had been working in South Korea. In his submissions, the Applicant said that the Tribunal had accepted his other claims, but had not accepted that he was attacked by fundamentalists when he visited Bangladesh. He went on to say that the Tribunal had made an assumption that the threat was either imagined or exaggerated for the purpose of enhancing the application. His submission is that the Tribunal misinterpreted information which he had provided before the Tribunal. That information indicated that Islamic fundamentalists are on the rise in Bangladesh, that human rights abuses continue between political opponents, and that women in Bangladesh continue to suffer severe disadvantage because of their gender.
He goes on to say that the Tribunal had said that none of the information provided by him in support of his claim that fundamentalists were targeting former development workers or persons who were previously involved with the Awami League. He said, however, that he had never claimed in a way that former development workers were targeted by the fundamentalists. He said his claim was that he was the only unlucky person who worked for the development of women and was the only person who was victimised for those works.
He takes issue with the Tribunal's comment that no former development workers were targeted by fundamentalists and he said that his claim about the attack was not credible. He said that it was evident that fundamentalists were a growing concern in Bangladesh because they prevented the development of women, and whoever works for the development of women will become a target for fundamentalists. He claimed the Tribunal misunderstood and misinterpreted his evidence, which led to jurisdictional error.
Against that, counsel for the Respondent submits that this claim is in fact an application for review of the merits of the Applicant's claim and that merits review is not permissible in judicial review. In other words, a challenge to the facts or the factual findings of the Tribunal is not open unless the Tribunal has made a factual finding for which there is no evidence at all. That is what the Applicant has said and has said that in respect of each of the three grounds.
For the Respondent, Mr Jordan sets out that at page 187 of the Court Book in the last paragraph, the Tribunal did set out the reasons why it arrived at that conclusion. That paragraph makes it clear that the reasons arise principally from the Applicant's own evidence.
The Tribunal also referred at page 186 of the Court Book to the Applicant's account of the attack or the threat towards him in Bangladesh in 2004, describing it as vague. It is submitted on behalf of the First Respondent that a no evidence ground cannot go to jurisdiction unless there is no evidence at all. Here, there was some evidence and what the Tribunal had done was assess the evidence given by the Applicant but had not accepted that the evidence went to support the Tribunal's contention.
It must be made clear that on judicial review, a submission that the weight given to evidence by the Tribunal is incorrect will not go towards a finding of jurisdictional error unless there is no evidence for that finding to be made. It may well be that the Tribunal does not accept evidence which the Applicant considers to be convincing, or, places greater weight on adverse evidence than the Applicant considers to be appropriate. Provided that there is evidence, then the assessment of that evidence is entirely the function of the Tribunal and it is not open to this Court to substitute its own view of the evidence and make its own finding. Ground 1 must therefore fail.
Ground 2 claims that the Tribunal acted in excess of its jurisdiction and is supported by these particulars:
There was no evidence to support the Refugee Review Tribunal's finding that the three attacks he suffered before, those attacks involved a particular set of circumstances which no longer exist and will not be replicated in the reasonably foreseeable future.
Whilst the ground given in ground two is this time stated as an act in excess of jurisdiction, it is in effect another no evidence ground. The Applicant takes issue with the fact that whilst the Tribunal did accept that he had suffered those three acts in the past, he did not consider that the Tribunal was in a position to conclude that those circumstances no long existed and would not be replicated in the reasonably foreseeable future. He went on to submit that how the Tribunal did know or confirm that the attacks would not happen in the future, is not something that could be ascertained. He pointed out that he had suffered in the past because of his affiliation with the Awami League and his involvement with the development of women. He said that he had bitter experience in the past when he was in Bangladesh and that he had suffered harm from his political opponents as well as from the current government, the BNP Coalition. He then set out again that fundamentalists were against the development of women and people who assist the development of women will be targeted.
The Applicant went on to submit that his life is not safe in Bangladesh because he is the target of fundamentalists and that the Tribunal had therefore acted in excess of jurisdiction. He pointed out to the Court a report about widespread police corruption and a lack of discipline and police officers having committed numerous human rights abuses. Indeed, on occasions police are accused of having committed a number of extra-judicial killings and some people have died in police custody under suspicious circumstances. The use of torture and beatings was routine as far as the police in Bangladesh are concerned.
It is certainly not for the Court to disagree with the information proffered by the Applicant about the failings of the police in Bangladesh. At the same time, it is not open to the Court and the Court does not have jurisdiction to make a factual finding. The Court does not embark on its own fact finding expedition when conducting judicial review.
As far as the Applicant's no evidence claim in respect of ground two, it is pointed out that the Tribunal did set out its reasons for making that finding, at page 188 of the Court Book. The Tribunal assessed the Applicant's claims that he wanted to be a development worker and he wanted to resume his association with the Awami League.
The Tribunal assessed the Applicant's claim that fundamentalists would seek to harm him in the future when he participates in those activities. Whilst the Tribunal did point out that the Applicant had no firm prospect for development work in the future and expressed the view that he had not demonstrated any interest in the Awami League for almost five years, the Tribunal went on to consider what would be the situation if the Applicant were to obtain development work, which is work that he wants to do, and if he also decided to be involved with the Awami League. The Tribunal says:
The Tribunal is satisfied by information from external sources referred to above, that he can participate in those activities without adverse interest from fundamentalists, the government or anyone else in Bangladesh. The Tribunal considered the three attacks he suffered before, while he was involved in politics and development work, and finds that those attacks involved a particular set of circumstances which no longer exist and will not be replicated in the reasonably foreseeable future.
A no evidence claim in respect of this claim must fail because it is clear from the Tribunal's reasoning at page 188 of the Court Book that the Tribunal has referred to evidence, including a report from the United States Department of State, which is referred to at page 188 of the Court Book and the Tribunal said it was discussed with the Applicant at the hearing.
Whilst the Applicant may well be of the view that that information is either wrong or insufficient to enable the Tribunal to arrive at the conclusion at which it has arrived, the conclusion must be reached that there was evidence upon which the Tribunal was entitled to form the view that it took. The assessment of a factual situation is a matter for the Tribunal, provided there is evidence for the Tribunal to form the conclusion that it does. Ground 2 must fail.
The third ground given was that the Refugee Review Tribunal failed to ask a material question that it was required to ask. Despite that characterisation, the particulars again show a no evidence claim:
There was no evidence to support the Refugee Review Tribunal's finding that: 1) he has no firm prospect of development work in the future; 2) Refugee Review Tribunal failed to ask a material question how and when he would implement his plan for development.
It appears to me that this claim is very much a claim going to a merits review. In any event, however, it appears that there is evidence upon which the Tribunal could make the finding that there was no firm prospect of development work in the future. As I have pointed out during the hearing, the word "firm" is very important. It is not a finding of no prospect of work in this field, it is a finding that there is no specific proposal for work of a particular type within the general field of development work. There is clearly evidence for that. The fact that the Applicant had said and the Tribunal accepted that he wished to undertake his own development work or even form his own development agency, does not take away from a finding that there is no firm prospects. In any event, as was submitted by counsel for the Respondent, it was an alternative finding.
As to the claim that the Tribunal failed to ask the material question as to how and when the Applicant would implement his plan for development, there is no obligation on the Tribunal to make that inquiry. The Applicant pointed out that the Tribunal had made a factual error in respect of its statement at page 186 of the Court Book:
The Tribunal asked him why stopped work as a development worker, he stated his contract expired and not renewed.
The Applicant pointed out that contract work only applied to him when he was working for the United Nations in India and in Sri Lanka. He was involved in development work in Bangladesh but was not involved in contract work. As he pointed out in the Court, he has a development organisation in Bangladesh with which he could work if he were not subject to threats, intimidation and attacks from fundamentalists or from political opponents. Whilst that appears to be a factual error, it is not, to my mind, an error that is fundamental to the Refugee Review Tribunal's finding. Indeed, it is accepted that as the Tribunal is the fact finder, even an erroneous finding does not of itself constitute jurisdictional error.
The Applicant raised the point that he was being asked about the attacks on him and the threats to him when he returns to Bangladesh in 2004, and it will be recalled that those threats were dismissed or discounted by the Tribunal. The Applicant says that at the stage in the Tribunal hearing that this issue was being discussed, he had asked for a short break. The Tribunal Member said that he would look at photographs submitted by the Applicant during the break and on the return, the Tribunal Member did not ask the Applicant about anything further about that particular issue.
The Tribunal decision shows the photographs were returned to the Applicant, but the Applicant said that had the Tribunal continued with the questioning about that particular issue he would have had the opportunity to explain or clear up that particular point about being attacked on his last visit.
There is no transcript of the hearing provided, but even allowing for an outline of the circumstances as given by the Applicant, I am not satisfied that any denial of procedural fairness has been shown. If the Tribunal moved on to another point and the Applicant did not feel that he had been given the opportunity to clear up a factual error, it was always open to the Applicant to raise that; he was present at the hearing, he was accompanied by his brother, it was always open to him to raise that particular point with the Tribunal. What the Applicant does say is that he would be able to clear up that point if the matter was sent back to the Tribunal.
Conclusion
I am mindful of the fact that the Applicant is not legally represented.
I read through the decision thoroughly myself. I have considered jurisdictional error in general and not just the points raised by the Applicant. I am of the view that it is incumbent upon this Court to examine the decision as a whole in an effort to ascertain whether any other jurisdictional error appears whether or not an applicant raises the point. I am not able to discern any jurisdictional error either as submitted by the Applicant or otherwise.
As such, as there is no jurisdictional error, the application must be dismissed.
There is an application for costs in the sum of $3,500.00. The Applicant has been unsuccessful in his claim and costs usually follow the event. In other words, the successful party is entitled to ask the Court for an order that the unsuccessful party should be responsible for the legal costs.
The Applicant submits that whilst he is permitted to work by the terms of his visa, he is only a casual worker. He is employed in process work and makes $200.00 to $300.00 per week and a proportion of that must be sent to support his family in Bangladesh. It would be a financial hardship of some severity to have to pay the sum of $3,500.00 over a short period of time. Whilst that is not a reason for not making a costs order, it is certainly a matter that should be taken into account when looking at the question of time to pay.
The Applicant is to pay the First Respondent's costs fixed in the sum of $3,500.00. However, I allow eight months to pay. I require a transcript of my reasons for this decision, and the application will be removed from the list of cases awaiting finalisation
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 22 March 2006
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