SZJDS v Minister for Immigration - [2008] FMCA 371

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJDS v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 371

MIGRATION – Application to review decision of Refugee Review Tribunal – no point of principle.

Migration Act 1958 (Cth) ss.420, 422B, 424A, 425

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

Applicant:

SZJDS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 254 of 2007

Judgment of:

Barnes FM

Hearing date:

19 March 2008

Delivered at:

Sydney

Delivered on:

19 March 2008

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Ms L. Clegg

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG254 of 2007

SZJDS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal handed down on 9 January 2007 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Bangladesh, arrived in Australia in February 2005 having spent most of the six years before that time in the United Arab Emirates (UAE). He applied for a protection visa in September 2005. He claimed to fear persecution as an activist in the Saramik League and the Awami League (AL). The application was refused and he sought review by the Tribunal.
The applicant attended a Tribunal hearing. The decision of the Tribunal as originally constituted is not before the Court. However it is apparent that the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. The applicant sought judicial review in this Court and the matter was remitted to the Tribunal for reconsideration. It is that reconsideration that is the subject of these proceedings.
The applicant was invited to and attended a further hearing before the Tribunal. He provided the Tribunal with documentary material in support of his application, including letters of support from various officials of the Saramik League and the Bangladesh Awami League. After the Tribunal hearing he summarised his claims in written submissions and provided further documents, including a letter from the Vice President of the Bangladesh Awami League in Australia, an amended letter from the President of the Chittagong District (North) of the Bangladesh Awami League (who had provided an initial letter of support), a number of photographs said to have been taken with a former member of the Bangladeshi Parliament and a leader of the Bangladesh Awami League when they were visiting Australia, as well as photographic material and documentary material in relation to the situation in Bangladesh.
The applicant made claims in connection with his protection visa application and also orally at each of the Tribunal hearings. These claims are set out in some detail in the Tribunal reasons for decision. In particular the applicant claimed that since 1992 he had had a significant involvement with the Bangladesh Hotel Saramik League (Hotel Workers Union) in Bangladesh. He claimed that he was involved as an ordinary member organising meetings, demonstrations and membership appeals and that in 1993 he became the member of the Saramik League (Federation of all Unions) in a branch in the town in which he lived and a member of the executive committee with responsibilities for liaising with workers unions and supporting workers. He claimed that the BNP and Jamaat-e Islami and the employer associations did not support his activities and they became his “prime opponents”.
The applicant claimed that in 1996 he participated in a movement against the then BNP government, that he was known as an activist of the Saramik League in his area and that he was threatened a few times, including on one occasion when he was physically assaulted and verbally abused.
The applicant claimed that in 1997 he became the organising secretary of the Saramik League in his home town. His activities included negotiating disputes between workers and industry owners. He claimed that he was involved in a dispute between workers and management in a carpet industry company. When negotiations failed the League decided to organise a strike, which stopped production at the carpet mill. He claimed that during a subsequent clash a BNP activist was injured and died and that the management of the company filed a false murder case against 12 activists (including the applicant) even though he was not involved in the death of the BNP activist. He claimed that a warrant of arrest had been issued and that the police started looking for him so he left his hometown and lived in various places with friends.
The applicant claimed that he left Bangladesh in June 1998 with the assistance of a friend and that as the AL was in power the leaders of the party had helped him to pass through the airport. He then worked in the UAE. He returned to Bangladesh in 2003 for 10 weeks to visit his sick father, who passed away during that time. He claimed that the police came to know of his arrival in 2003, that they searched his house and when they did not find him assaulted family members.
The applicant returned to the UAE in February 2004 and in February 2005 travelled to Australia in the company of his employer. He claimed that his employer left him in Australia not having paid him wages that were owed and that when the applicant complained to the UAE ambassador he was advised to return to the UAE to claim his wages. He did not do so as he claimed to fear his visa would be cancelled and he would be forced to return to Bangladesh.
The applicant claimed that he feared that he might be harassed and intimidated in Bangladesh by the Rapid Action Battalion (RAB). He also claimed that in the UAE he had been involved in AL politics and had criticised the BNP government so that he would come to the attention of the Bangladeshi authorities. He claimed that the judiciary was corrupt and that it would be difficult to challenge any violent retaliation and that if he did return to Bangladesh he would be involved with the AL and be targeted by his BNP and Jamaat-e Islami opponents.
The Tribunal set out at length the claims made by the applicant at the first Tribunal hearing. It noted that it had listened to the tape recording of the first hearing. It was satisfied that the first Tribunal’s summary accurately reflected the claims that the applicant made before the Tribunal. It set out details of a letter that had been sent to the applicant by the first Tribunal under s.424A of the Migration Act 1958 (Cth), to which there had been no response, and referred to the information he had provided in support of his application to the Tribunal, including the letters of support stating that he was personally known to certain persons involved in the Saramik League and the AL. It also summarised in some detail his evidence at the second Tribunal hearing.
It is apparent from the Tribunal's summary of what occurred in the second hearing (which is the only evidence before the Court of the hearing) that the Tribunal raised with the applicant a number of issues in relation to aspects of his claims, in particular the concerns the Tribunal had in relation to his claim about a false charge of murder, the fact that his passport was nonetheless renewed thereafter by the Bangladesh Embassy in the UAE, as well as concerns the Tribunal had about his claims that he left the country rather than asking leaders of the AL to help him in getting the charges dropped. It also recorded that it raised with the applicant issues as to why he was unable to relocate internally and his response was that people would start asking questions and when these people found out information they would pass that information on to police who were looking for him.
The Tribunal also raised with the applicant the fact that none of the letters he provided in support said anything about the false changes raised against him.
Finally, the Tribunal referred to the evidence from the applicant submitted after the hearing, in particular his claim that in the hearing he had failed to summarise that he was involved with AL politics in Australia and participated in day‑to‑day political activities of the AL, Jubo League and Bangabandhu Society of Australia. It referred to the additional supporting letters and other documents he provided and then summarised independent country information in relation to the situation in Bangladesh.
In its findings and reasons the Tribunal noted that there were a number of discrepancies between the applicant's initial written claims and his subsequent oral evidence at the Tribunal hearings, essentially relating to dates and location of events. However it gave the applicant the benefit of the doubt and was prepared to rely on his oral evidence in assessing his claims. It did not draw any adverse inferences from such inconsistencies.
The Tribunal summarised the applicant’s essential claim as a claim on the Convention ground of political opinion and that as a result of his membership and activities with the Saramik League he was threatened by opponents from BNP and Jamaat-e Islami and that a false murder charge was filed against him in 1997 and that he feared his opponents and the police.
The Tribunal accepted certain factual aspects of the applicant's claims, in particular that he was a member of the Saramik League in Bangladesh from 1993 and became a member of the executive committee and subsequently, for a short time, served as the organising secretary of a branch. However it found that according the to applicant’s own evidence his activities (which included negotiating disputes and looking after workers, making sure they got paid and organising protests) were highly localised.
The Tribunal also had regard to the fact that the applicant was unable to provide satisfactory answers to any of its general questions regarding workers rights in Bangladesh at the time he was active in the Saramik League, particularly relating to union registration, the standard working week and the professions banned from forming unions. It found that “the applicant’s lack of knowledge with regard to these matters, even after taking his level of education into account, is indicative of his low level involvement in the Saramik League. On the basis of the applicant’s own description of his political activities, the limited geographic scope his activities, and his unsatisfactory knowledge regarding matters pertaining to unions and workers rights, the Tribunal finds that he was engaged in low level localised activities and that he did not have a significant political profile within Saramik League within Bangladesh”.
The Tribunal was prepared to accept that the applicant had participated in a strike in September 1997 and that during the resulting clash he was injured and a BNP activist died. However it was not satisfied that as a consequence the applicant was falsely charged with murder or that he was of any genuine interest to the authorities. The Tribunal found that it would be reasonable to expect that the police would have issued him with a summons or documents indicating he was wanted in relation to a crime as serious as murder and that it was implausible that there would be no such documents issued by the authorities. The applicant had claimed that friends and relatives had told him that a case was pending but the Tribunal found that he had provided no persuasive evidence as to how his friends and relatives had come to know of this in the absence of official notification.
The Tribunal referred to the letters of support provided by the applicant. However it found that the letters made no mention, “even tentatively”, of a false case against the applicant. While the Tribunal accepted that the letters appeared to suggest that he was a victim of harassment and physical assault it found there was no suggestion he had been falsely charged with murder or was wanted by the authorities. The Tribunal found that given the letters were written by colleagues in the Saramik League in the applicant’s area who claimed to know about him and his activities, it would be reasonable to expect that “if he was falsely accused of committing a serious crime and he was being pursued for that reason, this would have been reflected in the letters”.
The Tribunal also found that at the time the applicant claimed to have been falsely charged with murder the AL was at the height of its power in Bangladesh. It found it was implausible that the AL would arrange the applicant’s departure from the country instead of looking into the false charges.
The Tribunal found the applicant’s claims about his stay in Bangladesh for 10 weeks in November 2003 unpersuasive. It found it “odd” that he would have remained after his father’s death if he had in fact come to the attention of the authorities as claimed. It noted that the applicant had arrived in November 2003 and that his father passed away in December 2003. It did not find his explanation that he remained because of “family problems” satisfactory. It was of the view that if he was being genuinely pursued by the authorities, and concerned about being apprehended as a murder suspect, he would not have remained in that part of Bangladesh for as long as he did.
The Tribunal also had regard to the fact that the applicant's passport had been renewed in the UAE in 2002 and to country information suggesting that if there was an adverse report against him the Bangladeshi Embassy in UAE would have been notified. His response that his problems were specific and localised did not alleviate the Tribunal's concern. It also noted that there was no claim that the applicant had been hindered or experienced difficulties when he returned to Bangladesh in 2003 and departed in 2004.
For these reasons the Tribunal was “not satisfied that the applicant was or is the subject of a false case of murder against him or that the police have a genuine interest in him for that reason”. Nor was the Tribunal satisfied that the applicant was of interest to the authorities or the owner of the carpet factory for having participated in the strike nine years earlier, having regard to country information in relation to the legitimacy and frequency of strikes to resolve unresolved grievances.
The Tribunal addressed the applicant's claims to fear persecution based on his activities with the Saramik League. It was prepared to accept that he was threatened on a number of occasions and assaulted in August 1996 by local BNP and Jamaat-e Islami opponents. However it had regard to the fact that there was no claim of subsequent harm (including during the time the applicant returned to Bangladesh), that he was only engaged in low level political activities limited in scope and confined to his locality, that he had lived outside Bangladesh for nine years and had not claimed to have been seriously involved in Saramik League during that time. It was not satisfied that the applicant would engage in political activities in Bangladesh at a level higher than his past level of engagement and was not satisfied that if he returned to Bangladesh and continued to engage in Saramik League activities at the same level as in the past there was a real chance that he would face Convention‑related harm as a result. The Tribunal had regard to the absence of independent evidence to indicate that members and supporters of the Saramik League were subject to systematic persecution by members and supporters of the BNP and Jamaat-e Islami.
The Tribunal accepted the applicant's explanation at the hearing that he had had no direct involvement with the AL in Bangladesh and that his connection with the party was through the Saramik League. It also accepted that he was a member of the AL in the UAE and had been participating in AL activities in Australia. However it found that he had provided no information or detail regarding these activities at the hearing or in his post‑hearing submission and that the supporting letter from the vice president of the Bangladesh Awami League in Australia did not “fill the gap”, providing no information about the nature of the applicant's activities in Australia beyond the fact that he had “attended and led” functions.
The Tribunal was not satisfied that the applicant's involvement with the AL outside Bangladesh had given him a significant political profile or that he had been involved in politics at a level that would put him at a real risk of harm in Bangladesh. It was not satisfied that he would engage in political activities at a higher level on return to Bangladesh or that if on return he continued his AL activities at the same level as in the past there was any real chance he would face Convention‑related harm as a result.
The Tribunal observed that the applicant had provided “no satisfactory reason” why he would be harmed by the RAB or by any other organ of the state and was not satisfied that he would be.
While it stated that it was not necessary to consider relocation, the Tribunal also found that it would be open to the applicant to relocate internally in Bangladesh, having regard to the localised nature of his political activities, the size of Bangladesh and the absence of any persuasive reason from the applicant as to why he would unable to relocate. It was not satisfied that the applicant would be found and harmed by his local opponents anywhere in a densely populated country like Bangladesh.
Finally, the Tribunal considered the applicant’s claim that he would be pursued and harmed in Bangladesh by his former employer for having launched a legal action against him in Australia. It was not satisfied there was any real chance his former employer would track him down and harm him in Bangladesh for the reasons provided. Moreover it was not satisfied that there was anything in the applicant's evidence to suggest that any retaliation by his former employer would be for any Convention reason.
On all the evidence the Tribunal was not satisfied the applicant's fear of persecution for reason of his political opinion or for any other Convention reason was well‑founded.
The applicant sought review by application filed in this Court on

29 January 2007
. The application contains a number of generally expressed and unparticularised grounds. The applicant did not file any amended application or written submissions and he did not address the grounds in oral submissions, except to seek additional time to make submissions. Insofar as this was an adjournment application, such application was refused. The applicant was, however, given the opportunity to make oral submissions on any concerns as to possible jurisdictional errors in the Tribunal decision or procedures. He claimed, without elaboration, that there were problems at home in Bangladesh.
Counsel for the first respondent addressed not only the grounds in the application but also the Tribunal decision more generally in order to consider whether any jurisdictional error was apparent on the material before the Court.
The first ground in the application is that the Tribunal denied the applicant natural justice in that it was biased or there was an apprehension of bias in the making of the decision. This was elaborated on in ground three, which states that the manner in which the Tribunal dealt with the application and the applicant was such that it was possible to fairly apprehend that the Tribunal did not bring an impartial mind to the resolution of the matter before it.

There is no transcript of the Tribunal hearing before the Court in these proceedings. There is nothing in the material before the Court (which consists primarily of the decision of the Tribunal and letters in relation to its procedures) to establish either actual or apprehended bias. Bias is a serious allegation which must be clearly established and proved. There is no indication of bias by prejudgment in the sense considered by the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. There is nothing in the reasons for decision to indicate that the decision maker approached his function with a closed mind or that the circumstances are such (from the objective perspective of the fair‑minded lay observer, properly informed as to the proceedings and the matters at issue and the conduct complained of) as to give rise to an apprehension of bias. (See Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 [27] – [28]). On the contrary, the Tribunal's reasons for decision indicate that it had regard to all of the applicant's claims in a reasoned and rational manner. Its conclusions are not such as to found an apprehension that they were reached with a mind not open to persuasion or unable or unwilling to evaluate the material fairly. Indeed, while the Tribunal noted that there were inconsistencies between the applicant's written claims and his subsequent oral claims, it gave him the benefit of the doubt and did not have regard to such inconsistencies. Neither actual or apprehended bias is established on the material before the Court.
The second ground in the application is that the Tribunal made an error of law and failed to exercise the proper procedure in relation to making a decision on the review of the applicant's protection visa application. Such an unparticularised ground does not identify or assist the Court to identify any jurisdictional error.
The claim that the Tribunal failed to follow proper procedures is elaborated on in subsequent grounds. In particular there is a claim in ground five that “following the hearing, pursuant to s.424A of the Migration Act the Tribunal did not put anything in writing to the applicant to respond” and in ground six that the applicant was “not given any adverse information referred to in the Tribunal's decision” to comment on prior to the decision in breach of s.424A of the Migration Act 1958 (Cth).
The applicant has not identified any particular information subject to the obligations under s.424A(1) of the Act. As indicated above, the Tribunal did not have regard to any inconsistencies between the applicant's written claims in connection with his protection visa application and his oral claims. Hence no argument is available that there was a failure to comply with s.424A on that basis. In any event as the High Court observed in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18] s.424A(1) is not invoked by the Tribunal's reasoning process or thoughts or observations.
Insofar as the Tribunal relied on independent country information, such country information is within the exception to s.424A in sub‑s.(3)(a). The oral evidence and supporting documentation the applicant provided to the Tribunal is within the exception in s.424A(3)(b). There is nothing in the material before the Court to establish the applicant's contention that there was a failure to comply with s. 424A merely by failing to put any adverse information referred to in its decision to the applicant for comment. Section 424A does not require any adverse information to be put to the applicant for comment, bearing in mind the limitations in sub‑s. (1) and the exceptions in sub‑s.(3). In particular, s.424A(1) does not require the Tribunal to put to an applicant its reasoning process. No failure to comply with s.424A has been established.
It is also contended in ground four that the Tribunal denied the applicant natural justice and procedural fairness pursuant to s.420 and s.425 of the Migration Act 1958 (Cth). Section 420 is a directive to the Tribunal about the manner in which it should operate and there is no discernable breach of s.420 of the Act, let alone conduct that establishes a jurisdictional error, whether by virtue of a failure to comply with s.425 or otherwise.
Insofar as it is contended generally that there was a denial of natural justice I note the operation of s.422B of the Act. In relation to s.425 there is nothing to suggest that the Tribunal failed to comply with the procedures in relation to inviting the applicant to a hearing. The matter was remitted to the Tribunal. It invited the applicant to a second hearing and hence no issue arises as to whether it was obliged to do so. There is nothing in the material before the Court to indicate that the Tribunal failed to raise with the applicant dispositive issues in the course of the Tribunal hearing as required under s.425 of the Act. (See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152).
Ground seven of the application is that the Tribunal exceeded its jurisdiction or constructively failed to exercise jurisdiction by asking itself the wrong question in deciding that the applicant's claim and failing to maintain procedural fairness. The issue of procedural fairness has been canvassed above. There is nothing before the Court to establish a denial of procedural fairness constituting jurisdictional error. It is not apparent what question it is that the applicant says that the Tribunal should have asked. It has not been established that the Tribunal failed to carry out its task in the appropriate manner in accordance with its obligations under the Migration Act considering the criteria in the Refugee Convention. The Tribunal considered all the applicant’s claims. It has not been established on the material before the Court that the Tribunal failed to have regard to any integers of the applicant's claims or otherwise erred in the manner contended for in ground seven or the generally expressed ground two set out above.
Finally in ground eight the applicant repeated the claim that the Tribunal was biased on the basis that it did not consider the “new claim” with the “neutral point of view”. The applicant did not elaborate on what he meant by this ground but I note that in his post‑hearing written submission to the Tribunal he stated that in the hearing he had failed to “summarise” that he was involved in Awami politics in Australia and that he provided a letter of support. Insofar as the applicant intends to suggest that the Tribunal failed to consider such claim, that is not made out on the material before the Court. Rather the Tribunal considered in some detail (as set out above) the applicant's involvement in AL activities in Australia and elsewhere outside Bangladesh. It also addressed his letters of support. If he intended to refer to his claim that he would be pursued and harmed in Bangladesh by his former employer that issue was also considered. No jurisdictional error is apparent on the basis contended for in ground eight.
For the sake of completeness I note that in the applicant's affidavit filed on 29 January 2007 he raised grounds that were also raised in the application, including a denial of natural justice and a failure by the Tribunal to perform its duty according to the Migration Act. As discussed above, those generally expressed grounds are not made out.
As no jurisdictional error has been established, the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful and the first respondent seeks that he pay costs in the sum of $4,600. The applicant told the Court that he does not work and does not have any money. However his impecuniosity is not a reason in all the circumstances of this case for departing from the normal principle that the unsuccessful applicant should meet the costs of the respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. I consider that the amount, which is less than the amount provided for in the Federal Magistrates Court Rules, is appropriate in the light of the nature of this and other similar matters.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 3 April 2008