SZJVC v Minister for Immigration & Anor
[2007] FMCA 606
•12 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJVC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 606 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of Bangladesh claiming a well founded fear of persecution on the ground of political opinion – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 474 |
| SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 367 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 |
| Applicant: | SZJVC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3654 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 April 2007 |
| Date of last submission: | 12 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 April 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Broderick |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3654 of 2006
| SZJVC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 24th October and handed down its decision on 14th November 2006. The tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. The Applicant now seeks a review of that decision.
Background
The background to this matter is that the Applicant is a citizen of Bangladesh. He arrived in Australia on 22nd June 2005 and applied for a Protection (Class XA) visa on 4th August in that year. His application was refused on 29th August, and the Applicant then sought a review of the decision of the delegate. The Refugee Review Tribunal affirmed the decision of the delegate on 23rd November 2005 in a decision handed down on 13th December.
The Applicant then sought judicial review of that decision from the Federal Magistrates Court. On 19th July 2006 the Court made orders by consent granting his application for review and issuing orders in the nature of certiorari and mandamus. The Court quashed the Tribunal decision and required the Second Respondent, the Tribunal, to redetermine the matter according to law.
The Tribunal wrote to the Applicant inviting him to attend a further hearing. The Applicant submitted a further written submission, which was received by the Tribunal on 15th September 2006. That document dealt not only with factual matters but also with matters relating the law.
The Applicant attended a hearing of the Tribunal on 19th September where he gave evidence. At that hearing the Applicant told the Tribunal about his claim that he had to leave Bangladesh due to political problems, including threats to his life and persecution. He submitted that the fundamentalist and terrorist political party in Bangladesh, Jamat‑e‑Islami, along with the Bangladesh National Party, which is in power, would seek to harm him because of his involvement in the Awami League.
The Tribunal noted the Applicant's claims, which included to main problems, first, his fear that he would be shot or arrested on his return because of the false cases that have been brought against him, and, second, the fear that the Jamat‑e‑Islami would also target him for his refusal to assist them in bomb making ‑ in other words, as the Tribunal said, he fear harm because of his activities in support of the Awami League and because he has refused to assist the Jamat‑e‑Islami. The Tribunal asked the Applicant a number of questions about his background in politics and about his refugee claim.
The day after the hearing, 20th September 2006, the Tribunal wrote to the Applicant. A copy of that letter can be found at pages 163 to 165 of the Court Book. The Tribunal's letter to the Applicant sets out a number of items of information about the Applicant's protection visa application and matters referred to in it. The Tribunal also informed the Applicant of certain external information about the prevalence of document fraud. The Tribunal invited the Applicant to comment on that information and asked that those comments be received by
13th October. The letter was written to comply with the requirements of s.424A of the Migration Act.
The Applicant did reply to the letter by means a letter dated
12th October 2006, which the Tribunal received the next day. That letter made a number of comments and also contained excerpts from the transcript of the hearing. The Tribunal handed down its decision on 14th November 2006. A copy of the Tribunal decision record can be found at pages 196 to 216 of the Court Book. In that decision, the Tribunal makes reference to what it considers to be the relevant law and sets out on pages 199 through to 210 a detailed summary of the claims and evidence. That included evidence given to the first Tribunal. It is well accepted that evidence given to an earlier Tribunal hearing, unless specifically withdrawn by an applicant, can be considered by a Tribunal on a second hearing.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons are set out on pages 211 through to 216 of the Court Book. The Tribunal accepted that the Applicant was a national of Bangladesh and was satisfied that he was a Bengali and a Muslim. The Tribunal accepted a number of matters about the Applicant's background, including his education, his employment and his family background. The Tribunal accepted that the Applicant was a supporter of the Awami League, which is prominent in politics in Bangladesh.
The Tribunal, however, was not satisfied that the Applicant had been a member or an official of the party or had in any other way been involved except than as a general voter. The Tribunal, although it found the Applicant to be well‑presented and articulate, considered that the presentation of his refugee claims was often vague or lacking cogency (see Court Book page 211). The Tribunal set out a detailed analysis of the Applicant's evidence, but found that certain key aspects of the Applicant's claim lacked credibility. That included an account of an alleged attack on him on 5th January 2005. The Tribunal, at page 212 of the Court Book, did not take a positive view of letters of support which the Applicant had submitted.
The Tribunal noted that the Applicant suggested that the Tribunal should directly verify with the authors of the letters their genuineness, but the Tribunal decided not to do so stating that its primary concern lay not with the letters authorship or genuineness but with the veracity of the contents.
The Tribunal also referred to country information obtained both by the Tribunal independently and also provided by the Applicant about what it described as Bangladesh's violent political culture. However, the Tribunal did not find that a matter that led it to be satisfied that the Applicant had suffered harm or would suffer harm in the future.
The summary of the Tribunal’s findings can be found on page 215 of the Court Book in two paragraphs where the Tribunal says:
In sum, the Tribunal does not accept that the applicant has suffered past harm, let alone persecution, for Convention-related or other reasons. It follows that it also does not accept that he has had occasion to seek police assistance as claimed at hearing, and that they failed to act on his complaints (whether because of lack of information, lack of interest or any complied complicity in the now dismissed acts of harm).
In considering whether the applicant has a well‑founded fear of persecution now or in the reasonably foreseeable future, the Tribunal has considered factors in addition to his now-rejected claims of past harm. As noted above, it accepts that the applicant is a low‑profile support or of the Awami League and that he is a well‑educated, liberal‑minded person. The Tribunal is not satisfied, however, that a person with such attributes faces a real chance of persecution in Bangladesh for those reasons.
The Tribunal was not satisfied the Applicant had a well‑founded fear of Convention‑related persecution if he were to return to Bangladesh and found that he did not satisfy the criterion set out in sub‑section 36(2) for a protection visa.
The application for judicial review
The Applicant has sought judicial review of the Tribunal's decision. He filed an application and an affidavit in support on 8th December 2006. The affidavit annexes a copy of the Tribunal decision. It also annexes transcripts of the hearing. The application seeks the following orders:
i)A declaration that the decision of the Refugee Review Tribunal is null and void.
ii)A writ of mandamus direct to the Refugee Review Tribunal to rehear and redetermine the Applicant's application for review according to law.
iii)A writ of certiorari directed to the Respondent removing into this Court to be quashed the purported decision of the Refugee Review Tribunal.
iv)A writ of prohibition directed to the Respondent Minister.
The application gives two grounds for relief: first, a breach of s.424A of the Migration Act in that the Applicant says that there was certainly adverse information used by the Tribunal to affirm the decision under review and the tribunal did not disclose the information in accordance with sub‑s.424A(1). The second ground is that the Tribunal has failed to consider an essential integer of the Applicant's claim, being the reality of the Applicant's chance of persecution upon his return to Bangladesh.
The Applicant has attended Court today and made oral submissions. He told the Court that he had disclosed everything to the Tribunal and did not understand why the Tribunal acted in the manner that it did. He disclosed to the Tribunal matters about the problems in his country and his fear that if he returned he would not be safe. He said it he had told the Tribunal that he did not want to stay in Australia permanently but only temporarily until the current problem is solved in Bangladesh. He pointed out that he had family members still in Bangladesh and business interests and, in fact, can earn more money in Bangladesh than he can in Australia. These, he submitted, were all points going towards the genuineness of his desire to remain temporarily in Australia until the threat had dissipated. In reply, he also told the Court that he does meet the definition of a refugee and that he wishes to remain temporarily in Australia.
I indicated at the beginning of the hearing that the Court has limited powers under the Migration Act. Those powers are perhaps best set out in the decision of Gyles J in the Federal Court in SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at [3], where his Honour said:
In so far as the Federal Magistrates Court is concerned, it has no role to second guess the Tribunal on matters of fact or judgment. The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed.
The submissions go directly to matters of fact or matters of fact or judgment. The Court does not have the power to conduct what is known as merits review ‑ in other words, it cannot deal with a challenge to the factual findings of the Tribunal and it certainly cannot reconsider the factual evidence and make its own decisions on the facts. It is well established that matters of fact are matters for the administrative decision maker ‑ in this case, the Refugee Review Tribunal.
The inability of a Court on judicial review to intervene on matters of fact has been set out by the High Court in Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 367 and the minister. On the question of credibility of factual evidence, it is well established that credibility matters are matters of fact and, therefore, for the administrative decision maker. Again, as with all matters of credibility and with all matters of fact, so long as there is evidence upon which a conclusion is open to the Tribunal, even if the Court itself in deciding the matter would form a different view, then the Court may not interfere. The assessment of the credibility of a witness lies directly with the administrative decision maker, as has been well set out by the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, particularly at.[67].
Looking at the Applicant's grounds in his application, he claims a breach of s.424A of the Migration Act. The Tribunal put to the applicant in a letter dated 20th September a number of factual matters, including concerns about document fraud, and invited the Applicant to comment. The Applicant did comment, and it is clear from the decision that the Tribunal took those comments into account. In my view, the Tribunal did comply with the requirements of s.424A of the Migration Act. The Tribunal was not satisfied about the credibility of some of the applicant's evidence, and that is a matter for the Tribunal and will not be overturned on review.
As to the other claim that the Tribunal failed to consider an essential integer of the Applicant's claim ‑ being the reality of the Applicant's chance of persecution upon his return to Bangladesh ‑ that is, of course, the very substance of the Applicant's factual claim. It is clear that the Tribunal considered the law relating to persecution, particularly as set out in s.91R of the Migration Act, and that consideration of persecution can be found at page 198 of the Court Book. The Tribunal's review of the Applicant's factual evidence or the factual evidence generally is extensive, and the Applicant has not identified any part of the claim relating to the chance of persecution in Bangladesh that the Tribunal has not considered. In my view, that ground must fail.
I am mindful of the fact that the Applicant is not legally represented, and I have examined the material independently of the Applicant's claims and, indeed, independently of the Minister's submissions. I am not able to discern an arguable case for a jurisdictional error.
In the absence of jurisdictional error, it is well established by the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 that the Tribunal's decision will be a privative clause decision. Privative clause decisions are defined in sub‑section (2) of s.474 of the Migration Act. Under sub‑section (1) of s.474, a privative clause decision is final and conclusive and is not subject to orders in the nature of mandamus, certiorari, prohibition, and is not subject to a declaration. It follows that this application must be dismissed. I note that I have previously made an order that the title of the Respondent Minister has been changed to Minister for Immigration & Citizenship.
There is an application for costs on behalf of the First Respondent Minister. The Applicant's claim has been unsuccessful and this is an appropriate matter for a costs order. The amount sought of $3,800.00 is within the scale prescribed by the Federal Magistrates Court Rules. I propose to order that the Applicant pay the First Respondent's cost fixed in the sum of $3,800.00.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 20 April 2007
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