SZKAG v Minister for Immigration
[2007] FMCA 813
•29 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKAG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 813 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – no arguable case. |
| Migration Act 1958, s.91X Federal Magistrates Court Rules 2001, r.44.12 |
| Applicant: | SZKAG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 87 of 2007 |
| Judgment of: | Cameron FM |
| Hearing dates: | 24 April & 29 May 2007 |
| Date of Last Submission: | 29 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2007 |
REPRESENTATION
The applicant appeared in person.
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
Pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 the application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 87 of 2007
| SZKAG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 9 January 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on
5 December 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration & Multicultural Affairs (“Minister”) dated 5 May 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
In proceedings such as these it should be kept in mind that the role of the Court is not to conduct a review of the merits of the applicant's application but to determine whether there has been jurisdictional error on the part of the Tribunal.
Background facts
The Tribunal described the applicant in the following terms:
… she is a citizen of Bangladesh and was born and educated in Shariatpur. She is 27 years of age, speaks Bengali, reads and writes English and is of Bangladeshi ethnicity. She described her occupation and gave a history of employment as “NGO worker”.
The applicant is married and her husband is living in Bangladesh. Prior to her departure from Bangladesh she lived at an address in Shariatpur form 1994 until October 2005. (Court Book (“CB”) page 88).
The applicant claims to fear persecution in Bangladesh because of her political activities and religious beliefs.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-7 of the Tribunal’s decision (CB 88-91). And it should be noted that the version of events given by the applicant at the time of her application for a protection visa differed from the version given by her at the hearing before the Tribunal.
In general terms, what the applicant claims is as follows:
a)she grew up in a politically active family affiliated with the Bangladeshi Awami League and after she finished school in 1994 she became involved in politics and joined the Jubo League, which is the youth wing of the Awami League. In 1995 the applicant became an executive member of the Jubo League in Shariatpur and in 1996 she worked for the Awami League and organised women to cast votes in the election. In 2000 she was elected as an executive member of the district branch of Awami League and worked for a candidate from the Awami League in the October 2001 elections;
b)the applicant also worked for a non-government organisation in Bangladesh known as SDS, which assisted women in Bangladesh. Then she became a target for fanatical Muslims;
c)the applicant married a man from a rich and powerful family but was tortured by her husband and members of his family and had to endure cruelty. Before her departure from Bangladesh her husband tried to force her to obtain a large sum of money which she declined to do. The applicant also says that if she returns to Bangladesh her husband and his family will kill her as they found out she was not a person of Islamic faith; and
d)the applicant also claims to fear that if she returns to Bangladesh she will face persecution as she was involved in politics and worked with SDS. She also claims to have had a number of false cases filed against her.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
The Tribunal found the applicant's evidence to be vague, evasive and inconsistent. The Tribunal's decision was based on the following findings and reasons:
a)although the Tribunal accepted that the applicant grew up in a family which supported the Awami League, it did not accept that the application was a member of the Awami League at any time prior to her departure from Bangladesh. The Tribunal considered that the applicant's lack of knowledge was not consistent with her claim at the hearing that she was an active member of the Awami League and it considered that she had fabricated claims of her political involvement with the Awami League;
b)when asked to provide specific details of her involvement the applicant found it impossible to fabricate those details because she had no experience to draw upon. In reaching these conclusions the Tribunal noted the following:
i)at the hearing the applicant could not give evidence of the circumstances of her joining the Awami League; or
ii)a description of her activities with the Awami League;
iii)she could not demonstrate any knowledge of Awami League policies even at a superficial level; and
iv)she claimed that she worked in the national election campaign for the Awami League, but she could not remember the date of the election and was very hesitant when asked to give details of her involvement;
c)as the Tribunal did not accept that the applicant had ever been an active member of the Awami League, it did not accept that she faces any risk of harm from the political opponents of the Awami League or government authorities for this reason. The Tribunal did not accept that the applicant would face harm for this reason if she returns to Bangladesh and noted the following matters:
i)the Tribunal did accept that members of the applicant's family are supporters of the Awami League and it considered whether she would face harm by reason of her association with such family members; but
ii)there was no country information which suggested that persons who vote for and support the Awami League are persecuted by their political opponents simply for that reason;
d)the Tribunal also did not accept that the applicant was an employee or worker for a non-government organisation known as SDS. It considered that her claims of involvement in a non-government organisation had been fabricated to strengthen her refugee claims and noted:
i)she was not able to tell the Tribunal the full name of the organisation, its aims and purposes, the specific nature of her work with the organisation or its exact location;
ii)she had no documents which could support her claims of employment with this organisation;
iii)she was extremely evasive when asked to discuss her role in this organisation;
iv)according to her own evidence she commenced work with the organisation when she was 17 years of age and worked there for only three years; and
v)she gave no details of any threats or mistreatment arising from her claimed involvement with SDS;
e)the Tribunal also did not accept that the applicant faces threats of harm from members of her husband's family should she return to Bangladesh. The Tribunal did not accept that if the applicant returned to Bangladesh she would suffer harm at the hands of her husband's family because she is a married woman of a lower social caste, noting the following:
i)the evidence of extortion was not consistent with the evidence given by the applicant that after these threats she travelled from Bangladesh to Australia with her husband;
ii)the applicant was not able to give the Tribunal any further details about the circumstances of the alleged extortion by her husband and his family or the threats allegedly made against her;
iii)the Tribunal did not accept the applicant's evidence that her husband separated from her at the airport when she arrived in Australia or that she then met a friend who worked at the airport who helped her with living arrangements in Australia; and
iv)she was very evasive when giving evidence of these events and the Tribunal found her account of these events highly implausible;
f)the Tribunal did not accept that members of the applicant's family were hostile to her because she did not have a belief in religion, noting:
i)she made this claim at the hearing but did not seek to elaborate on it; and
ii)the Tribunal found her evidence to be vague and evasive when it sought to question her further.
Proceedings in this Court
The grounds of the application for this Court are pleaded in the following terms:
1.the Refugee Review Tribunal (“Tribunal”) made jurisdictional error by failing to consider the applicant’s claim that she feared persecution by reason of her family’s association with the Awami League;
2.the Tribunal made an error by regarding the absence of country information that persons who vote for and support the Awami League are persecuted “for that reason alone” as being sufficient to reject the applicant’s claim that her family’s support of the Awami League gave her a well-founded fear of persecution;
3.the Tribunal made a number of errors in deciding the fate of the applicant’s claim.
Dealing with each of these grounds in turn:
The Tribunal failed to consider the applicant’s claim to fear persecution because of her family’s association with the Awami League
In relation to the first of these grounds it is apparent from a consideration of the Tribunal's decision record that the Tribunal did consider what the applicant's family's support for the Awami League might have meant for the applicant. However, it is also important to note that the applicant's claim to fear persecution because of her family’s links to the Awami League is not principally a claim that she will be persecuted because of these links themselves. A consideration of the applicant's evidence given to the Tribunal as appears in the Tribunal's decision record indicates that the applicant was more concerned with her own activities than with any persecution which might have arisen as a result of her being a member of a particular social group made up by her family.
The following passages from the Tribunal's decision are relevant in this connection:
After she left the NGO she claimed she worked in politics. When asked to give further details she claimed that her family are involved in the Bangladeshi Awami League. When pressed for more detail she claimed she grew up in a family which followed politics and that influenced her. I asked her to tell me how she was involved in politics. She paused for a lengthy period of time and then stated that she used to cast votes for the Awami League. I asked her whether she was a member or supporter of the Awami League and she stated she was a member however when I asked her how she joined she paused for a lengthy period of time and claimed she could not remember and that perhaps her family did something to join.
She stated that she was a member of the youth branch of the Awami League in Shariatpur and used to attend meetings. When I asked her to describe the meeting she said they used to discuss opposition parties and talk about other branches. She could not tell me the main differences between the policies of the Awami League and the opposition parties. When pressed she stated that they did not believe in the policies of the opposition parties.
…
She claimed that she feared return to Bangladesh because she would be killed by people related with politics. When I asked her why she thought she would be killed she did not answer …
When I asked her about her political problems she claimed she worked for the national election. When I asked her in what year she did this work she told me she could not remember but a well known person named Mubarak Ali Shikder was involved in the election.
She could not remember the years of the elections but thought it was some time ago. A notorious person, Hemayet Uddin Awranga was also involved in the election. Her problem was that all her family worked for election of the Awami League. She cast her vote for the Awami League and "cast ladies' votes" for the Awami League. When I asked her to explain she claimed that she picked up ladies and took them to the polling centre. (CB 89 – 90).
These passages indicate that the applicant's claim to fear is based upon her own involvement and that she has not made much of a case of claimed persecution by reason of being a member of a particular social group made up of her family. In that context it is to be observed that the Tribunal concluded that the applicant had fabricated her claims of political involvement with the Awami League. This was said to be the basis of her fear and the Tribunal found it to be non-existent.
For these reasons I am satisfied that the Tribunal did consider the applicant's claim that she feared persecution by reason of her family's association with the Awami League while noting that that association was far from the focus of her claim as made.
The Tribunal erred by rejecting the Applicant’s claim to fear persecution because of her family’s support of the Awami League because there was no country information to support the claim
The second ground of review, which appears to contradict the first ground of review, misconstrues what the Tribunal found to the extent that it asserts that it was the absence of country information which led to the conclusion that the applicant did not have a well-founded fear of persecution by reason of her family’s support for the Awami League.
Although the Tribunal accepted that members of applicant's family were supporters of the Awami League, by that point in its decision it had already rejected the applicant's claim to have herself been an active member of the league. If the applicant was to convince the Tribunal that she had a well-founded fear of persecution by reason of persecution of her family for support of the Awami League it was incumbent upon her to put material before the Tribunal sufficient that it could reach the level of satisfaction required by the Act that she met the criteria for a protection visa.
As the applicant had been rejected as a fabricator and there was no other credible information, such as independent country information, to support her claim it is unsurprising that the Tribunal failed to reach the necessary level of satisfaction. In the absence of credible information from the applicant and acceptable evidence from third party sources, it was open to the Tribunal to find that the applicant would not face harm by reason of her association with family members who may support the Awami League should she return to Bangladesh.
The Tribunal erred in its decision making
The third ground of review raised by the applicant in the application is unparticularised and appears to be no more than a form of catch-all ground, which was not particularised in the applicant's submissions to this Court. The applicant's written submissions focused on the issue raised by the second pleaded ground of review and her oral submissions today turned more on the merits of her claim.
Submissions at hearing
In respect of the applicant's submissions to the Court today the applicant has invited the Court to consider the merits of her application rather than to consider such jurisdictional error as she says the Tribunal may have committed. In proceedings such as this it is not for the Court to reconsider the merit of the applicant's application. It is concerned with the fairness of the procedure and with the way the Tribunal has articulated its decision. Nothing the applicant has said in her submissions today raises a fresh and appropriate basis for review of the Tribunal's decision.
Conclusion
The matter is before the Court today on a show cause hearing to determine whether the applicant has an arguable case for the relief she seeks. The authorities show that an application should not be dismissed under r.44.12 unless the lack of a cause of action is clearly demonstrated or the claim is groundless or there is a high degree of certainty about the outcome.
In these proceedings I am satisfied that the applicant's action does not disclose an arguable case. None of the matters which the applicant has put before the Court demonstrates a jurisdictional error on the part of the Tribunal, with the consequence that the application must be dismissed pursuant to r.44.12.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 18 June 2007
0
0
2