SZIIG v Minister for Immigration
[2006] FMCA 1410
•14 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIIG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1410 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – applicant is a citizen of Bangladesh claiming a fear of persecution because of his engagement to a Hindu woman – applicant is a Muslim – claimed fear of persecution because of past political opinion – credibility – privative clause – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 425, 425A |
| SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1996] HCA 6 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 Yo Han Chung v The University of Sydney [2002] FCA 186 |
| Applicant: | SZIIG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 446 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 September 2006 |
| Date of Last Submission: | 14 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms McWilliam |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $4,000.00.
I allow eight (8) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 446 of 2006
| SZIIG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
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. The decision was signed on 29th December 2005, and handed down on 12th January 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa.
The Applicant seeks a review of that decision and, in particular, seeks a writ of prohibition, an injunction, a writ of certiorari and, a writ of mandamus.
Background
The Applicant is a citizen of Bangladesh. He arrived in Australia on 30th August 1997, and on 12th April 2001 applied for a protection visa. This application was refused. A decision of the Refugee Review Tribunal affirmed the delegate's decision on 30th June 2003.
The Applicant then sought judicial review and on 24th August 2005 the Full Court of the Federal Court allowed his appeal, set aside the orders of the Federal Magistrates Court, and remitted the matter to the Tribunal for reconsideration according to law.
The Tribunal invited the Applicant to attend a further hearing, which took place on 28th November 2005. The Applicant submitted some recent press reports to the Tribunal prior to the hearing. They related to violence in Bangladesh and the situation for Hindus in Bangladesh. The Applicant gave oral evidence to the Tribunal on Monday
28th November 2005 with the assistance of an interpreter. He brought is passport to the hearing with him and the Tribunal noted the contents.
The Applicant told the Tribunal that he had a well founded fear of persecution for two reasons: first, because of political opinion; second, because of a relationship with a Hindu woman. Being a Muslim, the Applicant said that in respect of the political opinion he had been involved in the Bangladeshi National Party (BNP) and he had faced trouble in the past from members of Awami League and also from a fundamentalist Islamic organisation, called the Jamaat Islami.
The Applicant said that as a result of his difficulties with the Awami League false charges had been placed against him and that those wee ongoing. The Tribunal asked the Applicant a number of questions about both his political situation and the relationship with the lady.
The Applicant told the Tribunal that he was still engaged to the lady at the date of the hearing even though they had not seen each other for some eight years.
The Tribunal considered a significant amount of independent country information which is set out on pages 142 through to 147 of the Court Book.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons are set out on pages 147 through to 152 of the Court Book. The Tribunal accepted that the Applicant was a citizen of Bangladesh. I note that the Applicant had provided his passport to the Tribunal.
The Tribunal considered the Applicant's two claims for a protection visa. As far as the Applicant's chances of persecution, if he were to return to Bangladesh, the Tribunal noted that the Applicant had been absent from Bangladesh for over eight years. This length of time was significant as the Applicant had not been involved BNP politics since he left Bangladesh and the Tribunal did not accept that after an absence of that length of time that his return would threaten those persons who are currently engaged in branch politics in his formal local area.
As far as the threats levelled towards the Applicant are concerned, the Tribunal found, at page 149 of the Court Book, that there was no evidence to indicate that the Applicant could not access reasonable state protection from the police and the Court system if he felt that he was under threat from individual members of the Awami League upon his return to Bangladesh. The Tribunal did not accept that the Applicant faced any harm relating to false politically motivated charges made against him prior to 1997.
The Tribunal noted that the Court system had worked in his favour in relation to one set of charges, and the Tribunal referred to country information to show that a number of other charges against people, which were politically motivated had been withdrawn. The Tribunal did not accept that the Applicant was at any risk of harm from the current government authorities, or from members of the BNP from his local area, or from members of the Awami League, because of his activities prior to his departure from Bangladesh in 1997.
Similarly, the Tribunal did not accept that the Applicant had a well found fear of persecution for reasons of his relationship with a lady of Hindu faith. The Tribunal did not accept that the Applicant had become engaged to a girl of Hindu faith in 1997, finding that his account of the development and continuation of their relationship was vague, generalised, and implausible.
The Tribunal noted the Applicant's claims that despite having no face to face contact with his fiancée, (which is consistently misspelt through the decision), for over eight years, their relationship was still ongoing and the couple had corresponded and had telephone contact during that time.
The Tribunal noted that the Applicant provided the Tribunal with copies of Australian telephone accounts, listing calls to numbers in Bangladesh but the Tribunal, however, did not find them of any value in supporting the Applicant's account of the events. The Tribunal indicated that the Applicant had made highly exaggerated claims regarding the attitude of the Bangladeshi community to the situation of a Moslem male becoming engaged to a Hindu female.
The Tribunal found the Applicant's and events highly implausible and did not accept that there was ever a romantic relationship between the Applicant and a girl of Hindu faith. The Tribunal considered that the Applicant's account of the events had been fabricated to support his refugee claims.
Because the Tribunal did not accept that there had ever been such a relationship, the Tribunal, therefore, did not accept that he left Bangladesh because people asked him about that relationship, nor did the Tribunal accept that the relationship had continued for further eight years up to the date of hearing. Because the Tribunal did not accept that there was a relationship at all, the Tribunal did not need to consider whether his claimed inability to marry his fiancée in Bangladesh constituted persecution for reasons of religion.
The Tribunal was not satisfied that the Applicant had a well founded fear of persecution for any Convention related reason and, therefore, did not satisfy the criteria set out in s.36(2) of the Act for protection visa.
The application for judicial review
The Applicant commenced proceedings for judicial review of that decision on 10th February 2006. He filed an amended application on 29th May 2006, in which he claimed that the Tribunal had fallen into jurisdictional error on a number of grounds. He set out in his amended application four issues whereby he claimed the Tribunal fell into jurisdictional error.
They related to the fact that the Tribunal gave no weight to documentary evidence which he submitted, that the Tribunal gave no weight to certain country information about mixed marriages, and argued that the Tribunal's conclusions, based on his absence from Bangladesh for eight years and four months was speculative rather than an examination of the evidence, and said that the Tribunal had failed to consider evidence in rejecting his claim on the grounds that no further photographs of the Applicant and his fiancée had been produced.
The short answer to those four issues is they all go to merits of the case. The weight given by the Tribunal to evidence, be it documentary evidence or oral evidence, goes purely to the merits. Judicial review is not concerned with the merits of the case, that is the Tribunal's findings on factual issues so long as there is evidence upon which those findings can be made. I refer to the well known decision of Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1996] HCA 6 in that regard.
The Applicant also sets out issues under the heading of Country Information. In two numbered paragraphs 5 and 6, he sets out certain factual statements and made submissions relating to the weight or otherwise to be given to certain amounts of country information. That, again, goes to the merits of the decision.
On pages 3 and 4 of the amended application, the Applicant sets out eight grounds relating to jurisdictional error. The first claim is a claim of an error of law amounting to jurisdictional error in the Tribunal's failure to consider that the Applicant did not have a real chance of persecution for Convention reason in Bangladesh. The two grounds referred to. The Applicant's claims that the Tribunal made this comment on the basis of assumption and not on reality. That is, of course, a claim that goes to the merits and no jurisdictional error is shown.
The Applicant submitted, secondly, that the Tribunal had not taken into consideration the reasons for his leaving the country. The Tribunal, in my view, did consider the Applicant's reasons but rejected them. The Applicant goes onto say that the Tribunal erred in not considering his well founded fear of persecution without investigating the matters.
There is, most certainly, a power given to the Tribunal under s.424 of the Migration Act to make further investigations. There is no obligation, however, on the Tribunal in the ordinary course of events to make such investigations. As their main fear of the Full Court of Federal Court in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225, it is for the Applicant to produce evidence to satisfy the Tribunal.
The Applicant claims in ground 3 that there is a constructive failure to exercise jurisdiction in that the Tribunal did not properly consider whether non violent harassment could fall within the notion of serious harm under s.91R of the Migration Act. As the main reason the Tribunal rejected the Applicant's claims related to credibility the Tribunal did not accept that the Applicant had faced harm amounting to persecution. The Applicant's assertion is to my mind, again, a claim for merits review.
The Applicant claimed that the Tribunal failed to make due inquiries into (a), the obligation to act according to the substantial justice, and (2) the membership of a particular political group, and his relationship in Bangladesh. Those claims, therefore, are a breach of the Tribunal's obligation under s.420(2)(b) and a failure to seek additional information under s.424.
The Applicant's explanation of the failure to meet the obligation to act according to substantial justice was particularised by a claim going to the merits of the Applicant's factual claim, and as I have already found the Tribunal was not under any obligation to undertake its own investigations under s.424.
In ground 5, the Applicant complained that the Tribunal failed to accord procedural fairness in not giving him any opportunity to respond to any adverse material that it possesses. The material that was before the Tribunal came from (a) documents provided by the Tribunal; (b) the Applicant's oral evidence; and (c) independent country information. In my view, the Tribunal questioned the Applicant closely on various issues and challenged his assertions, and I am not of the view that any lack of procedural has been shown.
Ground 6 in the Applicant's claim alleges an error by the Tribunal in the Tribunal's lack of satisfaction of the Applicant being selected or targeted for persecution for any Convention reason was not formed by a correct application of the applicable law. No particulars are provided of that, and I am certainly not of the view that any breach of s.425A of the Migration Act has been made out.
Ground 7, alleges a constructive failure to exercise jurisdiction in arriving at the Tribunal's decision. There are no particulars provided of that and I am unable to discern any.
Ground 8, claims of an excess of jurisdiction by the Tribunal in three ways. (1) not permitting the Applicant to give evidence in accordance with s.425 of the Act; (2) failing to take into consideration the threat to the Applicant's life and liberty, and discrimination that he would face on his return to Bangladesh; and (3) not considering the well founded fear of persecution he would experience.
I asked the Applicant to explain why there was a breach of s.425 and he submitted that this was because he had submitted lots of documents and made points about his case, but they had not been accepted. In my view, the Tribunal complied with s.425 by inviting the Applicant to attend the hearing, which he attended. The evidence shows that the Applicant gave oral evidence at the Tribunal hearing.
There is no evidence before me that the Applicant was interrupted or otherwise prevented from giving evidence. The other two grounds mentioned in ground 8 are, to my mind, grounds relating to merits review only. There is also a sub-paragraph (a) and (b) of ground 8. Sub-paragraph (a) alleges taking isolated incidents and facts out of context, which were misleading and failed to take into account the cumulative affect of the Applicant's experience. This is a challenge to the Tribunal's factual findings and is not open on judicial review.
Sub-paragraph (b) alleges that the Tribunal Member failed to make proper attempts with an open mind to clarify the alleged inconsistencies and resolve any contradiction in a further hearing, or granting an opportunity to give the Applicant an explanation. Insofar as the claim goes to an apprehension of bias, in my view, there is no evidence. I refer to SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 where the Full Court of the Federal Court set at [43] – [48], nine principles relating to consideration of bias or lack of bona fides or bad faith. The Full Court said at [43]:
First an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second the allegation is not be lightly made and must be clearly alleged and proved.
In my view, there is no proof and, indeed, no evidence. As to any obligation by the Tribunal to conduct a further hearing as suggested in ground 8(b) there is no allegation on the Tribunal to set a further hearing. Whilst at times factual issues have arisen in a case or for some reason an applicant is not in a position to continue with the hearing due to illness the Tribunal may postpone a hearing or set a further date to take further evidence.
There is no obligation on the Tribunal to do so, and nothing arose in the context of this decision that would raise any suggestion that it was appropriate. There is certainly no obligation imposed upon the Tribunal to grant a further hearing to allow an applicant to make a case in reply to the Tribunal's decision. The Applicant's claim that the Tribunal failed to take a threat to his life or liberty or the significant discrimination that he would face, into account, this is no more than a challenge to the Tribunal's factual findings.
The Applicant submits the Tribunal failed to discharge the imperative duties of observe inviolable limitations or restraints to the effect that the decision he submits is not a decision made under the Migration Act within the meaning of s.474(2). Accordingly, he submits, it is not a primitive clause decision. In my view, it is. The Applicant claims that the Tribunal did not permit him to give evidence in accordance with s.425 of the Migration Act. For the reasons that I have previously given, I am satisfied that the Tribunal did comply with s.425.
Again, the Applicant's claim that the Tribunal fell into an error in affirming the delegate's decision, and this was not a bona fide attempt to act in the course of the Tribunal's authority, is, in effect, a claim of bad faith or bias. For the reasons which I have previously given I am satisfied that that claim has not been made out on the basis there is no evidence of it.
It follows that the Applicant's claims must fail. I am mindful of the fact that the Applicant is not legally represented. As was pointed out in Yo Han Chung v The University of Sydney [2002] FCA 186 at [31] – [34]:
Where an applicant is unrepresented the Court is required not only to consider the arguments put by the applicant but also independently consider whether an arguable case based on the material could be made out.
I have considered the Applicant's arguments and my independent consideration of the material is such that I cannot discern any arguable case. It follows, therefore, that no jurisdictional error has been made out and the Tribunal decision is a primitive clause decision as defined by s.475(2) of the Migration Act.
It follows, therefore, that the decision, being a privative clause decision, it is not subject to prohibition, mandamus, injunction declaration of certiorari in any Court on any account. The application will be dismissed.
The application has been unsuccessful. In my view, there is no reason why I should not make an order that costs follow the event.
The Applicant tells me that he is not in work and has not the funds to meet a costs order. I see no reason to disbelieve that. Unfortunately, it is not a matter that I can take into account in deciding whether I should make an order for costs or the amount of costs. It is, however, a matter to be considered in deciding time to pay.I propose to make an order that the Applicant is to pay the First Respondent's costs. The amount of $4,000.00 is sought, including, counsel's fees. In my view, that is an appropriate amount and I propose to make that order. I will, however, allow time to pay.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 21 September 2006
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