SZJXX v Minister for Immigration & Anor
[2007] FMCA 1282
•20 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJXX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1282 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of Bangladesh claiming fear of persecution for reasons of his political opinion – no reviewable error. |
| Judiciary Act 1958 (Cth), s.39B Migration Act 1958 (Cth), ss.474(2) |
| Lu v Minister for Immigration & Multicultural Affairs [2005] FCAFC 340 Craig v South Australia (1995) 184 CLR 163 MZWBW v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2005] FCAFC 94; SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 SZDBZ v Minister for Immigration & Multicultural Affairs [2007] FCA 78 WALT v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2007] FCAFC 41 |
| Applicant: | SZJXX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3903 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 July 2007 |
| Date of Last Submission: | 20 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mrs S. Sirtes |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,600.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3903 of 2006
| SZJXX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). In its decision, which was handed down on 5th December 2006, the Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa.
The applicant, by means of an application filed on 28th December 2006, seeks judicial review of that decision. In particular, he seeks a declaration that the decision is null and void, an order in the nature of certiorari quashing the Tribunal decision and an order in the nature of mandamus directing the second respondent, the Refugee Review Tribunal, to reconsider his application for review according to law.
The application is opposed by the first respondent, the Minister. The matter has a considerable litigation history. The applicant arrived in Australia from Bangladesh on 8th August 2003. On 18th September in that year he applied for a protection (Class XA) visa. That application was refused on 21st November 2003. The applicant then sought a review of the delegate's decision from the Refugee Review Tribunal.
The Tribunal affirmed the delegate's decision on 25th February 2004. The applicant then sought judicial review of that decision from this Court and on 7th March 2006 the Court set aside the Tribunal decision and remitted the application to the Tribunal to be determined according to law. The Tribunal differently constituted reconsidered the matter and again on 11th May 2006 affirmed the delegate's decision. Again, the applicant sought to exercise his right to obtain judicial review of that decision and on 17th August 2006 that decision was set aside and the application was remitted to the Tribunal for determination according to law.
The application went back to the Tribunal. The Tribunal wrote to the applicant on 7th December 2006 acknowledging receipt of the case and in a separate letter invited the applicant to appear at a hearing on
27th October 2006. The applicant indicated that he wished to attend the hearing and his migration consultant then forwarded to the Tribunal a letter from a member of parliament in Bangladesh supporting the applicant's claim.
The applicant also provided other material to the Tribunal in the nature of threats. Those documents can be found at pages 74-75 of the Court Book. The English translation of the two documents says in respect to the first one:
You are hereby warned not to abandon the party. If you fail to comply I will set your house on fire and everyone will see your dead body on the television.[1]
[1] See Court Book page 74
The next letter, on page 75 of the Court book, asked the applicant:
Will you be leaving the Awami League or the country? If you do not abandon the Awami League, having been killed your body will be fed to dogs. Be careful.
Both of those documents appear to have been signed I notice or at least bear the names of purported senders.
The applicant attended the hearing of the Tribunal and provided his passport. At the hearing the Tribunal asked the applicant a number of questions about his case which referred to his fear of persecution should he return to Bangladesh. The applicant repeated his claim that he was an Awami League nationalist and that brought him to the adverse notice of people in the BNP. He claimed that the BNP supporters threatened to kill him and expressed his belief that they would seek to kill him in the future.
The Tribunal signed its decision on 20th November 2006 and handed it down on 5th December in that year. A copy of the Tribunal decision record can be found at pages 96-106 of the Court book. In that decision the Tribunal considers the applicant's claims and evidence, refers to the applicant's attendance at a hearing before the second Tribunal on 8th May 2006 and reviewed that evidence and referred to the applicant's appearance at the third Tribunal hearing and summarised that evidence. A reference to independent country information can be found at pages 102 and 103 of the Court book.
The Tribunal's findings and reasons are set out on pages 103-106.
The Tribunal accepted the applicant's claim that he was a citizen of Bangladesh and I note that the Tribunal relies on the applicant's Bangladeshi passport which he produced to the Tribunal. Whilst the Tribunal was satisfied as to the applicant's citizenship, it was not satisfied about the credibility of his evidence. The Tribunal said:
However, it is not satisfied that the applicant presented a truthful account of his circumstances in Bangladesh and it finds that his core claims lack credibility.[2]
[2] See Court Book page 103
The Tribunal then set out reasons why a Tribunal should be cautious in making critical comments about credibility noting the need for sensitivity and special considerations which may arise out of the difficulties of proof which applicants face and problems of communication and mistrust and problems flowing from the experience of trauma and stress prior to arrival in Australia. However, the Tribunal expressed the view that whilst it is important to adopt a liberal attitude when assessing refugee status that should not lead to an uncritical acceptance of all claims.
In this case the Tribunal was not satisfied as to the applicant's general credibility. The Tribunal in particular was not satisfied about the applicant's claim to have been an active and committed member of the Awami League in Bangladesh and noted his limited knowledge about the party and its aims. The Tribunal in fact did not accept as credible the applicant's claim that he was targeted by political opponents because he was an Awami League member and activist and found that the applicant had fabricated those claims to enhance his protection visa application.
The Tribunal noted the applicant's documentary evidence submitted in support but in view of the finding that the applicant had fabricated the claim that he was involved with the Awami League in Bangladesh gave no weight to the documents that he submitted. The Tribunal went onto consider the applicant's claim for the politically motivated false cases pending against him in Bangladesh but was not satisfied that that claim was credible.
The Tribunal noted the applicant's claim that he would be targeted by members and supporters of the Islami Chhatra Shibir and the BNP in Bangladesh because of his involvement with the Awami League but found that related claim like his other core claims was fabricated to enhance his protection visa application.
The Tribunal considered the applicant's claim that he suffered from memory loss because he was traumatised by events in Bangladesh but was not satisfied that that explanation adequately accounted for his lack of knowledge of the Awami League's history, aims and achievements. The Tribunal went onto find that the applicant had limited knowledge regarding the Awami League because he was not involved with the Awami League in Bangladesh. Accordingly, the Tribunal found that the applicant did not have a well founded fear of persecution in Bangladesh for reasons of political opinion or any other Convention reason and affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant filed an affidavit on 26th April 2007 in which he claims that the Tribunal breached the rules of natural justice. He claimed that the Tribunal made jurisdictional error and referred to his amended application and the transcript that had been provided. In his amended application the applicant gave as a ground for review his claim that the Tribunal failed to follow the rules of natural justice and procedural fairness and thereby made jurisdictional error.
The particulars that are given, which apparently were not drafted by a lawyer, set out a mixture of particulars and indeed additional grounds. The applicant claimed that the Tribunal failed to identify the actual cause of his review application and referred to findings of the previous two Tribunals and queried how it was that the Tribunal came to a different decision. He submitted that the Tribunal decision was inter-twisted between admitting his suffering and persecution and dismissing it without any cogent reason. He claims that the Tribunal identified a wrong issue, ignored relevant materials and relied on irrelevant material. He referred to the decision in Lu v Minister for Immigration & Multicultural Affairs [2005] FCAFC 340 where the Court discussed the meaning of jurisdictional error as it was set out in the High Court decision of Craig v South Australia (1995) 184 CLR 163.
The applicant went on to submit that the Tribunal had misdirected itself as to whether there has to be a Convention reason in the circumstances of the claims of the applicant and submits that the Tribunal has misdirected its inquiries in relation to the issue of state protection and had not addressed the question of relocation.
The particulars generally are somewhat confused and at times difficult to comprehend. Counsel for the respondent Minister, Mrs Sirtes, in a written submission filed on 16th July 2007, gives a useful summary of what she sees to be the applicant's grounds, and I will quote that summary verbatim and rely upon it:
a)The applicant takes issue with the Tribunal's factual findings;
b) The Tribunal failed to afford the applicant an opportunity to demonstrate his knowledge of the Awami League and its structure;
c)The Tribunal's finding that the applicant was not a member of the Awami League was inconsistent with the findings of previous two Tribunals;
d)The Tribunal identified the wrong issue, ignored relevant material or relied on material which led it to commit a jurisdictional error;
e)The Tribunal failed to address effective state protection and relocation.
I have had the benefit of reading the amended application and written submissions prepared on behalf of both the applicant and the first respondent. Neither the applicant nor counsel for the first respondent sought to address the Court orally and in each case relied on the written material.
Dealing with the applicant's claim first of all where the applicant takes issues with the Tribunal's factual findings it has been submitted and I believe correctly that factual challenges are not a basis for establishing jurisdictional error even if the Tribunal's factual findings are incorrect. As was said by the Full Court of the Federal Court in MZWBW v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2005] FCAFC 94 per Black CJ, Sundberg and Bennett JJ at [28]:
It is not a jurisdictional error to make a wrong finding of fact.
Whilst the applicant takes issue with the Tribunal's findings about the credibility of his evidence especially in respect of the level of his knowledge of the Awami League, credibility and indeed factual findings are matters for the Tribunal. The material before the Tribunal was to my mind sufficient to allow the Tribunal to make those factual findings.
As to the applicant's claim that he was not given an opportunity to demonstrate his knowledge of the Awami League, it is certainly not a fact that the applicant was not given the opportunity to attend the hearing. He was. He attended. He gave evidence. Counsel for the first respondent submitted that the only way in which the applicant could be said to have been the victim of a jurisdictional error would be if he was unaware that his knowledge of the Awami League was in issue which was a matter considered in SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63.
That is not the case in the matter before me. The applicant was aware that his knowledge of the Awami League was in issue. Indeed, the applicant's membership of the Awami League was at the core of his claim to fear persecution should he return to Bangladesh. That is why the applicant claims that false charges have been brought against him and that there had been threats to kill him. It was because he said that he was an active and committed Awami League member. It was hardly surprising that the Tribunal focused on that issue and in the absence of his knowledge of the Awami League was not satisfied as to that claim. There is no evidence before me that the applicant was not given the opportunity to demonstrate his knowledge of the Awami League.
The applicant takes issue with the fact that the earlier Tribunals had found that he was a member of the Awami League but that the third Tribunal, ironically as the applicant said, was not so satisfied. Where a Tribunal undertakes a rehearing it does not err by considering the matter again. After all, the Tribunal's findings or the findings of the earlier Tribunals differently constituted forming part of the decisions have been set aside. Where an applicant applies for a decision to be set aside and that application is successful then the decision is set aside. The evidence remains for reconsideration that the decision made by the earlier Tribunal does not go to anything.
I am referred to the decision of Greenwood J in SZDBZ v Minister for Immigration & Multicultural Affairs [2007] FCA 78 at [21] to [22] and [31] to [33]. The Tribunal is under a statutory obligation to assess the scope and content of the appellant's claims or the applicant's claims in this case, notwithstanding that the Tribunal constituted by a different Tribunal member had previously accepted aspects of the version of events or claims asserted by an applicant. The Tribunal is obliged to discharge that statutory jurisdiction by examining the claims and reaching or failing to reach the required degree of satisfaction. No error is shown.
As to the fourth ground of a constructive failure namely identifying the wrong issue, ignoring relevant material or relying on material which led it into jurisdictional error it is difficult to see what is meant by that. I take no issue from the decision in Lu v Minister for Immigration & Multicultural Affairs to which I have previously referred as with respect quite sufficiently describes what the jurisdictional error is being an error of law which causes an administrative Tribunal to identify a wrong issue or to ask itself the wrong question or to ignore relevant material or to rely on irrelevant material or at least in some circumstances to make an erroneous finding or reach a mistaken conclusion and the Tribunal purported exercise of power is thereby affected exceeds its authority or powers. Quite clearly that is jurisdictional error. However, an assertion of those principles does not of itself establish jurisdictional error. That ground must clearly fail.
The applicant also claims that the Tribunal failed to address effective state protection and for that matter fails to also claim that the Tribunal did not address the issue or relocation. If as in this case the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason effective state protection is irrelevant. Again, there is no need to consider relocation if a person does not have a well founded fear of persecution. If a person does not have a well founded fear of persecution then the person does not need to relocate and the reasonableness or otherwise of it need not be considered.
I am referred very helpfully to the decision of the Full Court of the Federal Court in WALT v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2007] FCAFC 41. In that case their Honours said:
As the Tribunal decided that the appellant did not have well founded fear of harm for reasons of his religious beliefs or imputed religious beliefs it was probably unnecessary to address the issues of the adequacy of state protection and of relocation. The Tribunal's conclusion on the existence or otherwise of that fear and the reason for that conclusion were firmly expressed and without any indication that the Tribunal was in any doubt. See Minister for Immigration & Ethnic Affairs v Guo [1997] 191 CLR 559 and 576.
In my view it is clear that as the Tribunal was emphatically not satisfied that the applicant did not have a well founded fear of persecution and made clear findings as to his lack of credibility as a witness, there was no need to consider the availability of affected state protection, let alone the reasonableness or otherwise or relocation. That ground must fail.
I am mindful of the fact that the applicant is not legally represented. I have examined the Tribunal decision and the supporting material with that in mind and I am unable to discern any arguable case for jurisdictional error. I am satisfied that there is no jurisdictional error in the Tribunal decision. Accordingly, it follows that the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. A privative clause decision is final and conclusive and is not therefore subject to declaration or orders in the nature of certiorari or mandamus. It follows that the application must be dismissed.
There is an application for costs on behalf of the first respondent Minister. This is a case where costs should follow the event.
The amount sought being $4,600.00 inclusive of counsel's fees is in my view an appropriate figure and within the scale envisaged by the Federal Magistrates Court rules.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 30 July 2007
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