SZJWO v Minister for Immigration

Case •

[2007] FMCA 553

•

16 April 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJWO v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 553
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Bangladesh claiming fear of persecution – whether Tribunal failed to consider a relevant matter – no reviewable error.
Migration Act 1958 (Cth), ss.424, 474
SZHCJ v Minister for Immigration and Multicultural Affairs [2007] FCA 205 followed.
Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632 referred to.
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568 referred to.
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 referred to.
Minister for Aboriginal affairs v Peko Wallsend (1985-1986) 162 CLR 24 referred to.
Applicant: SZJWO

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

REFUGEE REVIEW TRIBUNAL
File Number: SYG 3749 of 2006
Judgment of: Scarlett FM
Hearing date: 12 April 2007
Date of Last Submission: 12 April 2007
Delivered at: Sydney
Delivered on: 16 April 2007

REPRESENTATION

Applicant: In person
Counsel for the Respondent: Mr Smith
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3749 of 2006

SZJWO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 21st November 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.

  2. The Applicant seeks a writ of certiorari quashing the decision of the second respondent, the Refugee Review Tribunal. He also seeks a writ of mandamus requiring the Tribunal to determine his application according to law.

Background

  1. The Applicant is a citizen of Bangladesh who arrived in Australia on


    8th July 2002 and applied for a Protection (Class XA) visa on 1st August 2002. The visa was refused on 24th October 2002 so the Applicant sought a review of that decision from the Refugee Review Tribunal.

Application for review by the Refugee Review Tribunal

  1. The Refugee Review Tribunal affirmed the delegate’s decision on


    23rd December 2003. On judicial review by the Federal Magistrates Court, orders were made by consent on 3rd May 2006:

    i)joining the Refugee Review Tribunal as Second Respondent;

    ii)issuing a writ of certiorari quashing the Second Respondent’s decision; and

    iii)issuing a writ of mandamus requiring the Second Respondent to redetermine the matter according to law.

  2. I note that I, in fact, made those consent orders, but I do not believe that anything turns on that fact, as the parties entered into consent orders prior to the hearing.

  3. The Applicant attended a hearing of the Tribunal on 27th July 2006 and gave oral evidence with the assistance of an interpreter. His adviser had submitted some documentary evidence to the Tribunal the day before. The Applicant told the Tribunal that he feared persecution because he was a member of a minority group and a well known Hindu in his area. He helped and advised people who had suffered because of BNP activists and their allies. He also said that he supported the Awami League, another political party in Bangladesh and a group called the Chhatra League. He further told the Tribunal that he was a member of a group called the Bangladesh Hindu Buddhist Christian Unity Council and had become a leader of that council.

The Tribunal’s findings and reasons

  1. A copy of the Tribunal’s decision record can be found on pages 231 to 256 of the Court Book. A copy of the Tribunal’s Findings and Reasons appears on pages 252 to 256 inclusive.

  2. The Tribunal accepted that the Applicant is a national of Bangladesh, based on the evidence of his passport and the absence of any evidence to the contrary. The Tribunal was also prepared to accept that the Applicant is a Hindu. However, the Tribunal did not find the Applicant to be a credible witness, saying:

    The applicant gave his evidence at the second hearing in a calm manner. He did not seem affected by nerves or anxiety nor did he appear to have been intimidated by the Tribunal hearing process. Yet he was an unimpressive witness and, for the reasons that follow, the Tribunal has concluded that he was not a truthful witness[1].

    [1] See Court Book at 252

  3. The Tribunal then proceeded to set out the reasons why the Applicant was not regarded as a truthful witness, and then made this finding:

    In light of the applicant’s lack of credibility, the Tribunal does not accept that the applicant was ever a supporter, member, office bearer or leader of the Chhatra League or Awami League, that he engaged in any political activities with either the Chhatra League or Awami League, or that he was involved in any election campaigns. Nor does the Tribunal accept that the applicant was a member or leader of the Unity Council or had any association with the group at all, or that he was the vice president of the organising committee of his local temple in Bangladesh or a Hindu leader. It follows that the Tribunal does not accept that (the) applicant has been targeted or harmed because he was involved with the Chhatra League, Awami League, Unity Council, local temple or because he engaged in any of the activities he claims.[2]

    [2] Court Book at 253 - 254

  4. The Tribunal then went on to consider whether the fact that the Applicant was a Hindu would alone give rise to a well-founded fear of persecution. After consideration of the independent evidence, the Tribunal found that Hindus in Bangladesh were generally free to practise their religion, that relations between members of the different religious communities were generally good and that the government had taken steps top promote interfaith understanding. The Tribunal found that the Applicant would be free to practise his religion and would not be persecuted for doing so.

  5. The Tribunal found that there was not a real chance that the Applicant’s circumstances were such that he would be persecuted if he returned to Bangladesh because he was a Hindu for reasons of his religion or for his imputed political opinion.

  6. The Tribunal also noted letters from the Australian branch of the Awami League and the Australian Bangladesh Society. However, the Tribunal said:

    As the applicant was so lacking in credibility in relation to the claims he has made about his political and religious activities in Bangladesh it is not satisfied that the conduct he has engaged in with these groups was done other than for the sole purpose of strengthening his refugee claims. Thus, in accordance with s.91R(3) of the Act it has disregarded that conduct in assessing his case.[3]

    [3] Court Book at 255

  7. The Tribunal found that the Applicant did not have a well founded fear of persecution in Bangladesh for reasons of political opinion, religion or any of the Convention grounds and affirmed the decision not to grant the applicant a Protection (Class XA) visa.

Application for judicial review

  1. The Applicant commenced proceedings in this Court on 14th December 2006. In his application he sets out the following grounds:

    1. The Refugee Review Tribunal made jurisdictional error in that it was (sic) failed to have regard to an integer of the applicant’s claim that he was persecuted for membership of a particular social group, namely a particular Hindu family.

    2. The Tribunal made jurisdictional error in that it made an error of law or alternatively failed to correctly apply the real chance test in that it had regard to whether there was a real chance test in that it had regard to whether there was a real chance that all Hindus in Bangladesh face foreseeable persecution in the future (sic).

  2. The Applicant was not legally represented at the hearing; however, he obtained legal advice from Mr Zipser of counsel, who forwarded a memorandum of submissions for the Applicant to the Court and to the legal advisers for the Minister about two hours before the hearing. Had it not been for the fact that counsel for the Minister, Mr Smith, assured me that he was in a position to meet this fresh ground and did not require an adjournment, notwithstanding the shortness of the notice, I would have been reluctant to allow the ground to be added. I consider that attempts to add a further ground to an application on the day of the hearing, well outside the time set out in the Court’s direction for filing submissions, are to be deprecated. I am unlikely to take such a lenient view in the future.

  3. The Applicant did not wish to discard either of his existing grounds and chose to add the new ground of review to his existing grounds. This ground is set out in the submission as follows:

    The applicant arrived in Australia on 8 July 2002 and relatively promptly lodged an application for a protection visa. The promptness with which an applicant lodges a protection visa application is relevant to whether their claims are true. The Tribunal failed to take this matter into account in determining whether the applicant’s claims were true. On this basis, the Tribunal failed to take into account a relevant consideration, giving rise to jurisdictional error.

  4. For the First Respondent, the Minister for Immigration and Citizenship, it was submitted that the Applicant’s first ground, that the Tribunal failed to consider his claim that he was persecuted for reasons of his membership of a particular social group, a particular Hindu family, ought to be rejected. The reason for rejection is that this claim was never expressly made and did not arise from any of the material before the Tribunal or any of its findings.

  5. Counsel for the Minister submitted that the Applicant’s second ground should also be rejected. This ground claims that the Tribunal erred in law by (not) having regard to whether there was a real chance that all Hindus in Bangladesh face persecution in the foreseeable future. The Tribunal considered the Applicant’s claim to fear persecution because of his religion fell into two categories, and counsel submitted that the Tribunal considered and rejected both.

  6. As to the fresh ground, Mr Smith submitted that it should fail for two reasons:

    a)The Applicant cannot establish whether the Tribunal did or did not have regard to the question of the relative promptness of his application for a protection visa.; and

    b)The Tribunal did not make any finding because it did not consider the facts material to its decision.

Conclusions

  1. The Applicant made no claim that he was persecuted because of his membership of a particular social group, being his own family, quite the reverse, in fact. The Tribunal noted this part of the Applicant’s oral evidence at the hearing:

    Asked if he feared he would be persecuted because his father was active in the local temple, the applicant said he did not and that he only feared being persecuted because of what he himself had done. He said the main reason he would be persecuted was due to his past activities.[4]

    [4] See Court Book at 239

  2. The Applicant did not claim that he was persecuted for member of a particular social group, namely a particular Hindu family. It was not an integer of his claim at all. It did not arise from the material before the Tribunal. The Applicant’s first ground fails.

  3. The wording of the Applicant’s second ground is garbled, but I take it to mean that the Tribunal fell into jurisdictional error or failed to apply the “real chance” test as to whether there was a real chance that all Hindus in Bangladesh face persecution in the future. In my view, the Tribunal clearly considered the Applicant’s chance of being persecuted because he is a Hindu in Bangladesh and, relying on the independent country evidence, dismissed that claim. The Tribunal accepted that some Hindus  face discrimination because of their religion, referring to the oral submission by the Applicant’s migration adviser, and considered the Applicant’s evidence on that point. The Tribunal found the Applicant would not suffer any discrimination in the reasonably foreseeable future because he was a Hindu that was serious enough to amount to persecution. This was a finding made by the Tribunal after considering independent country information, the Applicant’s adviser’s submission and the Applicant’s own evidence. The finding was open to the Tribunal on the evidence before it;

    Insofar 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

    (see SZHCJ v Minister for Immigration and Multicultural Affairs [2007] FCA at [3]).

  4. The Applicant’s second ground of review fails.

  5. The Applicant’s third, and fresh, ground of review, claims that the Tribunal failed to take into account the fact that the Applicant arrived in Australia on 8th July 2002 and applied for a protection visa on 1st August 2002. It is submitted that this was a relevant consideration which the Tribunal failed to take into account, thereby giving rise to jurisdictional error.

  6. The Applicant submits that where an applicant arrives in


    Australia and delays in applying for a protection visa, the fact of delay:

    (a)is relevant to whether the Applicant has a genuine fear of persecution and whether the Applicant’s claims are true; and

    (b)suggests that the Applicant does not have a genuine fear of persecution and their claims are not true.

  7. The Applicant refers to the decisions in Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632 at [10] and WAIJ v Minister for Immigration and Multicultural Affairs (2004) 80 ALD 568 at [30]. He submits that it follows that where an applicant arrives in Australia and promptly applies for a protection visa without delay, the absence of delay:

    a)is relevant to whether the Applicant has a genuine fear of persecution and whether the Applicant’s claims are true; and

    b)suggests that the Applicant has a genuine fear of persecution and their claims are true.

  8. With respect, I am not persuaded that either limb of the Applicant’s follows from the authorities. In my view, matters of delay or otherwise in applying for a protection visa are matters of evidence that may or may not be relevant to the Tribunal decision. They may have no relevance at all.

  9. The Applicant claims that the Tribunal may have overlooked the matter and refers to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69]. He submits that the Tribunal, in its findings and reasons, makes no reference to the Applicant’s reasonable promptness in considering whether his claims were true and that, in these circumstances, it is open to the Court to conclude that the Tribunal “ignored this relevant consideration, giving rise to jurisdictional error”.

  10. The Tribunal referred to the dates of the Applicant’s arrival in Australia and his application for a protection visa in its decision.[5] True it is that the Tribunal did not refer to those dates in its findings and reasons, but that does not lead to the conclusion that it ignored a relevant consideration. It has not been shown that the nearness of those two dates is relevant in this case and it was open to the Tribunal to conclude that this was not a matter of relevance.

    [5] Court Book at 232

  11. The Applicant also raises the question as to whether the Tribunal was required to consider this particular matter (cf Minister for Aboriginal Affairs v Peko Wallsend (1985-86) 162 CLR 24). He refers the Court to the provisions of s.424 of the Migration Act, which provides that:

    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision under review.

  12. The Applicant submits that while the information provided by the Applicant to the Tribunal does not fall within s.424(1), presumably the Tribunal has a common law obligation “to have regard to” information provided by the Applicant which is no less than the Tribunal’s statutory obligation under s.424(1).

  13. In my view, with respect, the comparison with s.424 is inapt. There is no comparison with s.424, which refers to the exercise by the Tribunal of a discretionary power given to it. It is for the Tribunal to assess the relevance or otherwise of evidence before it. I am not satisfied that the Tribunal failed to take into account a relevant consideration and the Applicant’s third ground of review fails.

  14. Whilst the Applicant had legal advice as recently as two hours before the hearing, he was not represented at the hearing. Accordingly, I have considered the Tribunal decision and supporting documentation with an eye to ascertaining whether any arguable case for any jurisdictional error is made out. I am satisfied that there is no jurisdictional error.

  15. The Tribunal decision is a privative clause decision as defined by s.474(2) and it is not subject to certiorari or mandamus.    

  16. The application will be dismissed with costs. I have already ordered that the title of the First Respondent has been changed to Minister for Immigration and Citizenship.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  16 April 2007


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Cases Citing This Decision

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SZJWO v Minister for Immigration [2008] FMCA 611