SZKTU v Minister for Immigration
[2007] FMCA 1652
•13 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKTU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1652 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of Bangladesh claiming fear of persecution for reasons of his political beliefs – merits review – no breach of Migration Act 1958 (Cth) s 424A – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(3)(a), 474 |
| W396/01 v Minister for Immigration & Multicultural Affairs (2000) 68 ALD 69 |
| Applicant: | SZKTU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1859 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 September 2007 |
| Date of Last Submission: | 13 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms McWilliam |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.
I will allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1859 of 2007
| SZKTU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant, who is a citizen of Bangladesh, asks the Court to set aside a decision of the Refugee Review Tribunal handed down on
24th May 2007 refusing him a protection visa for reason of his political opinion. He also asks the Court for a writ of mandamus remitting his application for a visa to the Refugee Review Tribunal for rehearing and redetermination in accordance with the law. Further, he asks the Court to issue a writ of prohibition against the first respondent, Minister for Immigration & Citizenship, preventing the Minister from acting upon or giving effect to the Tribunal decision.
The applicant relies on three grounds for review. First that the Refugee Review Tribunal failed to realise his persecution because of his adherence to a political party known as Jammat-e-Islami. Second that the Refugee Review Tribunal acted in excess of its jurisdiction.
Third that the Tribunal did not seek any written comment from him about some independent evidence.
In order to understand those claims it is necessary to consider the background of this matter. The applicant, a citizen of Bangladesh, arrived in Australia on 22nd September 2006. He applied for a protection (Class XA) visa on 3 November 2006 claiming that initially he came to Australia for religious purposes but feared that as a supporter of Jammat-e-Islami he would be harassed and humiliated and required to face false cases by members of the Awami League and by government on the basis of his political opinion.
A delegate of the Minister refused his application on 1st February 2007. The applicant then on 16th February applied to the Refugee Review Tribunal for a review of that decision. He did not provide any additional documentary information to the Tribunal at that stage.
The Tribunal wrote to him on 8th March inviting him to attend a hearing and give evidence on 16th April 2007. The applicant responded and indicated that he wished to attend but he would require an interpreter in the Urdu language. He also wrote a submission on
26th March, a copy of which can be found at pages 110 through to 113 of the Court Book. In his submission he set out that he was a religious scholar and Jammat-e-Islami leader in Bangladesh. Since his party had entered into a coalition with the BNP he had done a lot of development work in support of that party. He claimed that as a result opposition party members in his area became jealous of him and threatened that they would take revenge against him. He referred to a clash with Awami League supporters on 29th October 2006 which resulted in the death of three of their party members. He referred also to the fact that on 30th October 2006 a caretaker government took control and that night Awami League activists came to his house and again made threats to members of his family that they would take revenge upon him and kill him.
He submitted that he would not obtain any effective protection from the caretaker government, nor would he do so if the Awami League were returned to power at the next general election. He claimed that the police and the courts listened to the government. He also submitted that internal relocation to avoid harm is not an option in Bangladesh because it ignores the reality of Bangladesh. People in Bangladesh, he said, do not generally migrate around the country, except when they are married or sent to different places for employment. He said the presence of an outside would immediately create notice and he could not reasonably be expected to suppress the exercise of his inalienable human rights in order to avoid being subjected to persecutory treatment.
He further submitted to the Tribunal that he did not agree with the decision of the Department of Immigration when it found that:
a)a person who decides to return to his country of nationality from abroad voluntarily usually does not have a subjective fear of political persecution. He explained this by saying that at the time he made voluntary returns to Bangladesh his party was in power.
b)he took exception to the finding that his verbal testimony at the interview indicated that no member of his family was subjected to any form of violence in late October 2006. He said that what had in fact happened was that his political opponents harassed and physically tortured his family members and ransacked his house on the night of 29 October. He claimed that the delegate of the Minister had misunderstood what he had said.
c)the applicant disagreed with the statement that high-profile political figures are the main targets of political persecution in Bangladesh and ordinary supporters of political parties generally are not at risk.
d)the applicant disagreed that other people had a motive for him to gain permanent residency in Australia prior to the time that he applied for a protection visa, and
e)that there was no probative evidence that corroborated or refuted his testimony that Awami League activists came to his family home to search for him. He reiterated his claim that activists from the Awami League had come to his home looking for him on 29 October and he claimed that he had received verbal threats in the past.
The applicant submitted that the present caretaker government in Bangladesh had banned political and trade union activities and restricted provocative news, including talk shows, print and electronic media under the Emergency Powers Rules 2007. He claimed that human rights in Bangladesh are under threat under the present government and many political leaders are in goal and if he were forced to go back to Bangladesh he would face goal as well.
He submitted that he should be recognised as a refugee.
The applicant attended a hearing. He gave evidence and submitted his arguments and the Tribunal provided him with an interpreter in the Urdu language.
The Tribunal signed its decision on 7th May 2007 and handed that decision down on 24th May. A copy of the Tribunal decision record can be found at pages 129 through to 138 of the Court Book. In its decision the Tribunal summarised the applicant's claims and evidence (a) to the department, (b) to the Tribunal in the written submission and (c) the applicant's oral evidence at the hearing. The Tribunal also considered external information which is reproduced at pages 134 and 135 of the Court Book. The Tribunal noted that the Tribunal challenged the applicant on certain parts of his evidence, including the fact that there was no evidence that there would shortly be elections in Bangladesh and that those elections would result in a win for the Awami League. The Tribunal went on to say:
The Tribunal put it to him that the independent evidence indicated that elections will not be held before the end of 2008 as the election commission says "elections cannot be held until all electoral reforms, including drawing up of the new voters list with photo ID have been carried out. This gives the caretaker government nearly two more years in office".[1]
[1] See Court at 134
That particular quote was from an article by Sabir Mustafa entitled "Bangladesh At A Crossroads" downloaded from BBC News being a report of 5th April 2007. It was that report in greater detail that the Tribunal went on to set out in the external evidence.
The Tribunal's findings and reasons are set out on pages 136 and 137 of the Court Book. The Tribunal noted that the applicant had produced his passport at the hearing and found that he was a citizen of Bangladesh and accordingly assessed his claims against Bangladesh. The Tribunal accepted that the applicant was an ordinary member of the Jammat-e-Islami party, meaning that he held no office and did not execute any special functions within the party. The Tribunal noted that at prayer meetings and study groups that the applicant runs as an Islamic religious scholar he promoted his party as the one which best served Islam. The Tribunal accepted the applicant's claims that from time to time he had received phone calls asking for money and accepted that some of these people may be members of the Awami League and that low-level extortion is rife in Bangladesh.
The Tribunal went on to find:
The Tribunal accepts that such harassment may be irritating or unpleasant, but on the applicant's testimony it does not find that it constitutes harm of the type or severity that could be called persecution.[2]
[2] Court Book 136
The Tribunal accepted the fact that a clash between government and opposition supporters on the eve of the caretaker government having taken over and referred to independent country information from the United Kingdom Home Office Country Report on Bangladesh of February 2007. The Tribunal accepted that several local members of the Awami League had gone to the applicant's house and had slapped his brother, but the Tribunal found that this was a one-off event provoked by general communal disturbance in unusual political circumstances and was not satisfied that the action represented any ongoing threat to the applicant for reasons of his political opinion.
The Tribunal also noted that the applicant's wife and family still live in the same house and are undisturbed.
The Tribunal noted the substantial change in the political scene in Bangladesh since the applicant departed from there and noted that there has been a purge on corruption which has brought about change in many areas with a diminution all around of the once-prevalent extortion. The Tribunal accepted that independent evidence shows that there would be no elections in Bangladesh until late 2008 at the earliest and that street fights between supporters of rival political parties, which were once common, have now been banned and expressed the view, optimistically perhaps, that the way that politics has been played out in Bangladesh has irrevocably changed.
Accordingly, the Tribunal found the chance that Awami League supporters would harm the applicant for reason of his adherence to the Jammat-e-Islami party was remote.
The Tribunal found the applicant had not suffered harm in the past for reason of his political opinion or any other reason and found that the chance that he would do so in the reasonably foreseeable future was remote and the Tribunal, therefore, was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason and affirmed the decision not to grant him a protection (Class XA) visa.
In his amended application which he filed on 27th August 2007 the applicant set out three grounds. The first that the Refugee Review Tribunal failed to realise his persecution because of his adherence to Jammat-e-Islami. He claimed that the Tribunal failed to realise that persecution because of his adherence to Jammat-e-Islami when it made the comment about the chance that Awami League supporters would harm him for reason of his adherence to the Jammat-e-Islami party is remote.
The applicant further submitted that the Tribunal acted in excess of its jurisdiction by commenting that the applicant had not suffered harm in the past for reason of his political opinion or any other reason and the chance that he would do so in the reasonably foreseeable future was remote, that therefore the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
The applicant also claimed that the Tribunal did not seek any written comment from him about the independent evidence, being the article from the BBC News by Sabir Mustafa "Bangladesh At A Crossroads", which is set out in the Tribunal decision.
The applicant submitted on 29th August a written and detailed outline of submissions. He sets out in those submissions a relevant factual background and a summary of his claims, being that:
i)He had a well-founded fear of persecution because of his political affiliation with the Jammat-e-Islami.
ii)He had come to the adverse attention of the Awami League because of his involvement with Jammat-e-Islami.
iii)On 29 October 2006 Awami League activists came to his house looking for him.
iv)That they ransacked his house and physically tortured his family members. And
v)That they threatened to kill him if he went back to Bangladesh.
He then set out the Tribunal's findings and made submissions in respect of each of his three grounds.
The applicant attended Court and elected to rely on his written material which was quite comprehensive.
Dealing with the first ground, that the Tribunal failed to realise his persecution because of his adherence to Jammat-e-Islami, the applicant claims that the Tribunal did not consider the reality of the chance of persecution for him because of his political opinion if the current regime of law and order in Bangladesh collapsed or the old regime was reinstated. He claims that the Tribunal's failure to address this issue prevented it from having a rational basis for determining the chance of persecution for him in the future and resulted in the Tribunal not considering an essential and substantial matter of his claims.
He referred the Court to the decision of W396/01 v Minister for Immigration & Multicultural Affairs (2000) 68 ALD 69 at [33].
In response to this, counsel for the Minister, Ms McWilliam, submitted that this complaint was misconceived. Ms McWilliam submitted the Tribunal accepted the applicant's adherence to Jammat-e-Islami but did not accept that he would be persecuted because of it. She submitted that there was no evidence that the Tribunal misunderstood what amounts to persecution and therefore submitted that the applicant's complaint was directed towards the merits of the Tribunal's finding.
It is of course well-established that merits review is generally unavailable on judicial review.
Ms McWilliam went on to submit that in assessing the applicant's sur place claim the Tribunal was obliged to ask itself whether in all the circumstances the applicant had a well-founded fear of persecution for a Convention reason arising from events occurring after his departure from Bangladesh and submitted that it was apparent the Tribunal did consider his position on returning to Bangladesh. The Tribunal had referred to country information concerning how the political situation has changed in Bangladesh since the applicant's departure[3] and referred also to country information showing that elections would be held at the end of 2008 at the latest and that the political system in Bangladesh had irrevocably changed[4]. She submitted that the applicant's first ground could not be sustained.
[3] Court Book 136
[4] Court book 137
In respect of the second ground, the applicant submits that the Tribunal acted in excess of its jurisdiction by its finding that the applicant had not suffered harm in the past for reason of his political opinion and the chance that he would do so in the reasonably foreseeable future was remote. The applicant submits that it is not possible for the Tribunal to give him confirmation that he would not be persecuted for political opinion in the reasonably foreseeable future. He submits that, on the one hand, the Tribunal accepted that Awami League activists came to his house looking for him and ransacked his house and harassed his family members, but, on the other hand, the Tribunal asserted that he would not be persecuted for his political opinion in the reasonably foreseeable future.
Ms McWilliam for the Minister again submitted that this was a complaint about the merits of the Tribunal's decision but went on to submit also that the Tribunal's findings are reconcilable, pointing out that its finding of the chance of the applicant being persecuted was remote was based on a previous finding that the harm that the applicant's family had suffered was a one-off event and the Tribunal had accepted the independent country information that the political climate had changed. It was therefore open to the Tribunal to make the finding that it did.
In respect of the third ground, the applicant claims a breach of s.424A of the Migration Act by not seeking written comment from him about the independent evidence from the article by Sabir Mustafa "Bangladesh At A Crossroads". Ms McWilliam submitted that the Tribunal's findings were based on its view that the evidence of harm suffered either did not constitute persecution for a Convention reason or was a one-off event and also based its decision on independent country information. Neither of those matters, she submitted, enlivened an obligation under s.424A of the Act.
Conclusions
In considering the applicant's claims I will deal with the grounds in order. First, the claim that the Refugee Review Tribunal failed to realise the applicant's persecution because of his adherence to Jammat-e-Islami, I am satisfied that this claim cannot be sustained because the Tribunal did, in my view, consider what amounts to persecution and in considering the evidence of the harm that the applicant claimed to have suffered in the past or threats directed to his family it was not satisfied that amounted to serious harm amounting to persecution. I am of the view that this claim is essentially an invitation to the Court to engage in a merits review or a reconsideration of the applicant's factual claims. This is not available on judicial review.
If there was evidence, in my view, upon which the Tribunal could find that there was only a remote chance that supporters of the Awami League would harm him for reason of his adherence Jammat-e-Islami and provided there is evidence upon which such a finding can be made; there is no ground for the Court to interfere. In my view, ground 1 cannot be sustained and must be dismissed.
Secondly, I am not satisfied that there is evidence that the Tribunal acted in excess of jurisdiction by what the applicant claims are inconsistent or irreconcilable findings that the applicant had not suffered harm in the past for reason of his political opinion and the chance that he would do so in the reasonably foreseeable future was remote. The claim is essentially a claim for merits review. There was evidence on which the Tribunal could make the finding the applicant had not suffered harm in the past, meaning harm amounting to persecution. The Tribunal's finding that there was a remote chance that the applicant would suffer harm in the future for reason of his political opinion is based on independent country information. In other words, there was evidence which the Tribunal was entitled to take into account.
Accordingly, the Tribunal did not fall into jurisdictional error.
There was evidence available and the Tribunal gave it significant weight. It is immaterial that someone else hearing the factual claims may not have given that material such weight. But it was open to the Tribunal to give the weight to the evidence that it did and no jurisdictional error has been made out.
As to the third ground, that the Tribunal did not seek any written comment from the applicant about the independent evidence, being the article "Bangladesh At A Crossroads", it is quite clear that this is information that falls within the exception in sub-s.424A(3)(a) of the Migration Act. It is accepted that independent country information is not subject to the obligation under sub-s.424A(1) of the Act because sub-s.424A(3) says, relevantly:
This section does not apply to information (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.
In my view, the information about which the applicant complains does not fall within the purview of sub-s.424A(1) of the Migration Act. Accordingly, the applicant's third ground fails.
I am mindful of the fact that the applicant is not legally represented. He has clearly had some assistance in preparing his case, which he is entitled to do. I have read through the decision thoroughly in order to satisfy myself that there is no arguable ground for jurisdictional error that the applicant has not raised and I am unable to see any. I am satisfied that no jurisdictional error has been made out. The decision therefore is a privative clause decision as defined in sub-s.474 of the Migration Act. Privative clause decisions are not subject to orders in the nature of certiorari or mandamus; they are final and conclusive.
It follows that the application must be dismissed.
There is an application for costs on behalf of the first respondent Minister in the sum of $5,000.00. The first respondent has been successful. There is no reason why I should not apply the normal practice for making an order for costs in favour of the Minister.
The amount of $5000 which is estimated inclusive of counsel's fees is a figure that is allowed by the scale of the Court Rules. It is an appropriate figure and I propose to make an order for the applicant to pay the first respondent's costs fixed in the sum of $5,000.00. I note that the applicant is not in employment and I accept that it would be difficult, if not impossible, for him to come up with the sum of $5,000.00 at short notice. I consider that is a fact I should take into account when considering time to pay. I allow six months to pay.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 26 September 2007
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