SZLBL v Minister for Immigration
[2007] FMCA 1752
•3 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLBL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1752 |
| 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 religion – applicant did not attend Tribunal hearing – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36(2), 65, 91R(2)(a), 414, 415, 420, 424, 424A, 426A |
| MARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262 |
| Applicant: | SZLBL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2185 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 October 2007 |
| Date of Last Submission: | 3 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 3 October 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Nil |
| Solicitors for the Respondents: | Ms Kantaria |
| Solicitors for the Respondents: | 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.
I will allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2185 of 2007
| SZLBL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant is a citizen of Bangladesh. He asks the Court for a declaration that the notification by the delegate of the Refugee Review Tribunal to refuse to grant a protection visa to him is invalid and has no effect. He also asks for a Writ of Certiorari quashing the decision of the Refugee Review Tribunal and an order that no action is to be taken to remove the applicant from Australia while a decision is pending.
The applicant sets out a number of grounds, including breach by the Tribunal of s.424A of the Migration Act, a claim that he provided adequate evidence to the Tribunal that he was sick and unable to attend the hearing, a claim that the Tribunal failed to give proper consideration to whether he would suffer serious harm as set out in s.91R(2)(a) of the Migration Act, a claim that the Tribunal, whilst it did not use country information in specific, used general information to weigh against his case and failed to consider country information from Amnesty International and was preoccupied and did not take a fresh look.
He claimed that the Tribunal acted illogically and thereby committed jurisdictional error when it failed to give proper weight to certain matters relating to his religion; and claimed that the Tribunal failed to find that the applicant satisfied the definition of "refugee" as set out in article 1A(2) of the Refugees Convention.
The background to this matter is that the applicant arrived in Australia on 26th January 2000. He applied for a protection (Class XA) visa on 9th March 2007. A delegate of the Minister refused his application on 21st March 2007 and on 11 April in that year the applicant applied to the Refugee Review Tribunal for a review of the delegate's decision. The applicant did not provide any additional information to the Tribunal at the time of lodging his application.
The Tribunal acknowledged his application by means of a letter dated 11th April 2007 sent to his address for correspondence. The Tribunal then wrote to the applicant on 19th April and invited him to attend a hearing on 22nd May 2007. Unfortunately the applicant did not attend the hearing. The Tribunal noted that no response was received to its invitation and the applicant just did not appear. The Tribunal Member proceeded to decide the matter without taking any further action to enable the applicant to appear under the provisions of s.426A of the Migration Act.
The Tribunal noted the applicant's claims in his protection visa application to the effect that he had grown up in an extremist Muslim family and when he came to Australia found that this country was a majority Christian country. Eventually the applicant converted to Christianity, and put that his conversion to Christianity would not be accepted by his family or relatives in Bangladesh and claimed that he feared harm from family, relatives and neighbours if he returned to Bangladesh as a Muslim convert to Christianity and did not claim that the authorities would protect him.
The Tribunal accepted that the applicant is a citizen of Bangladesh on the basis of a certified copy of his passport. The Tribunal in its findings and reasons was not satisfied that sufficient evidence had been provided, saying:
The applicant has made vague claims about his religious background and his developing interest in Christianity. He has claimed that he converted to Christianity but has given no details whatsoever of this nor submitted any evidence in support of this assertion. As noted already, the Tribunal is not required to accept uncritically any and all assertions made by an applicant.
The applicant was put on notice in writing that the Tribunal was unable to make a favourable decision on the information before it. The applicant has not sent any further material for the Tribunal to consider nor has he availed himself of the opportunity offered for him to give oral evidence in support of his claims.[1]
[1] See Court Book at 67
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention and affirmed the Tribunal's decision not to grant the applicant a protection (Class XA) visa.
The applicant has commenced proceedings for judicial review by filing an application and affidavit in support on 13th July 2007. He has since filed an amended application on 24th August 2007 in which he sets out his grounds for review. The first ground contains what appears to be a typing error, when it claims that the Tribunal failed to accord procedural fairness under s.424 of the Migration Act. It is clear that the applicant intended to refer to s.424A of the Migration Act, as he quotes from that section.
The claim under s.424A, as I take it, is that the Tribunal failed to accord procedural fairness as considered by the full Federal Court in NARV v Minister for Immigration, Multicultural & Indigenous Affairs[2] in so far as the Tribunal relied on independent evidence as to the prevalence of claims about religious persecution. On the basis of that the Tribunal is not satisfied as to the genuineness of his claims nor of the genuineness of his statements about his harassment of a systematic nature.
[2] [2003] FCAFC 262
He quotes the section and claims that the Tribunal should have given him particulars of independent information as to claims based on adequate State protection. They have raised the issues of the poor law and order situation in Bangladesh and that information formed part of the reason for the Tribunal decision. The Tribunal did not mention to him adverse information to decide his case, either at the time of review of afterwards.
The answer to that claim is quite simple - the Tribunal did not rely on any independent information to decide the case. There is no reference to independent country information at all in the decision. The decision was arrived at due to an inadequacy of information. The first ground, therefore, fails.
The second ground is that the applicant said:
I have given adequate evidence to the Tribunal that I was sick and I have sent a copy of a medical certificate that the Tribunal Member failed to consider.
The applicant has produced today an original certificate of sickness covering the period 16th May until 23rd May 2007. That document is from the Waterloo Medical Centre.
I put to the applicant that the certificate of sickness does not give any indication that the certificate is actually for the Tribunal. The applicant explained that he gave the document to his friend and that the friend sent it off to the Refugee Review Tribunal. When asked to comment on an affidavit by Jonathan Christian Willoughby-Thomas, District Registrar of the Refugee Review Tribunal, filed on 20th September 2007 - which indicated that the deponent had searched, amongst other things, the physical RRT file and the computerised case management system, and that his searches revealed that there was no record of the RRT having received a copy of any medical certificate from the applicant; annexed to the affidavit is a print-out from the case management system - the applicant indicated that his friend may have made a mistake, and he had asked a friend to do him a favour.
The friend did not attend Court to give evidence nor was an affidavit by this person provided. In the circumstances I am not satisfied that the applicant has provided an explanation, not as to his suffering and illness, because he has provided that, but as to his notification to the Tribunal of his inability to attend due to sickness. The second ground, therefore, must fail.
The third ground claims that the Tribunal failed to consider properly the test of whether the applicant would suffer serious harm as per s.91R(2)(a) of the Migration Act, which is a mandatory jurisdictional requirement for the Tribunal to do. The applicant claims that the Tribunal's failure to satisfy this statutory obligation was a serious jurisdiction error caused by the Tribunal.
The reason why the Tribunal did not grant the applicant's application was because of an inadequacy of information provided, which the Tribunal made clear in its findings and reasons. My reading of the Tribunal decision shows that the Tribunal considered what little information there was, which, in respect of the applicant's claims of a fear of persecution, consisted of an assertion by the applicant that he would suffer harm as a result of his conversion to Christianity.
In my view the Tribunal did consider what information there was. There was no failure to consider, and under the requirement of s.91R(2)(a) of the Migration Act that ground must fail.
The fourth ground claims, rather curiously:
The Tribunal did not use the country information as specific, however the general information gathered by the Tribunal considered to weigh against my case in the final outcome. The Tribunal used all information for matter of reasoning and evaluation of my case for the protection visa. The Tribunal was preoccupied and did not have a fresh look. The Tribunal also failed to consider the Amnesty International country information.
The applicant concedes that the Tribunal did not use country information as specific, but claims that the Tribunal had gathered general information. There is no evidence of that. The claim that the Tribunal used all information for reasoning of evaluation of his case for the protection visa cannot be sustained. The Tribunal was not satisfied that the applicant had satisfied it that he met the requirement for a visa due to the inadequacy of the evidence.
Section 65 of the Migration Act makes it quite clear that it is up to the applicant to satisfy the Minister, or the Tribunal standing in the shoes of the Minister, and if the Tribunal or the Minister is so satisfied then a visa must be granted. It follows that if the applicant does not satisfy the Minister or the Tribunal then a visa cannot be granted.
As to the claim that the Tribunal failed to consider information from Amnesty International, it was up to the applicant to provide independent country information upon which he would like the Tribunal to provide. The Tribunal has no obligation to conduct its own inquiries even though it has a power to seek information under s.424. Ground four fails.
The applicant claims that the Tribunal acted illogically when dealing with his claims of conversion to Christianity and thereby committed a clear jurisdictional error. Even if illogicality were a ground for jurisdictional error - and in my view it is not - there is no evidence of any illogical reasoning by the Tribunal in this decision. The applicant claimed that the Tribunal committed clear jurisdictional error because it failed to weigh properly the effect of:
a)the fact that he was a genuine converted Christian;
b)that he had been threatened by his family because he converted to Christianity; and
c)the Tribunal did not consider his genuine sickness to give him another hearing date.
The applicant made the claims of being a genuine converted Christian, and this was an assertion, and no further. There was no evidence that the applicant provided to the Tribunal that he had been threatened.
His original statement to the Tribunal contains a speculation as to what would happen. The nearest he gets to a threat is the speculation:
Obviously they will plan to kill me.[3]
[3] Court book at 27
As to the Tribunal not considering the applicant's genuine sickness, I am not satisfied that the applicant has shown the Tribunal ever received a copy of his medical certificate. Ground five must fail.
The sixth ground claims that the Refugee Review Tribunal failed to accept that the applicant satisfied the definition of "refugee" as defined in R4182 of the Convention. To go further, the Tribunal failed to see that the applicant satisfied the four key elements that are required to satisfy the Convention definition. The applicants states that the Tribunal refers to the four key elements and since they satisfy them he is entitled to a protection visa.
This claim is no more than a challenge to the Tribunal's findings on the facts. It is an invitation for the Court to engage in merits review, which the Court will not do on an application for judicial review. The fact is that the Tribunal did not grant the applicant's application because there is insufficient evidence to satisfy the Tribunal. That ground fails.
The applicant also refers to ss.91R2, 414, 415 and 420 of the Migration Act. He submits that the Tribunal failed to analyse properly future harm the applicant may face if he did have to go back to Bangladesh. He claims that this was a serious jurisdictional error.
The Tribunal considered what claims there were and what little evidence that there was but was not satisfied that the applicant had established a case sufficient to satisfy it that he met the criterion for a protection visa under ss.36(2) of the Migration Act. It is for those reasons that the application was not granted.
It is most unfortunate that the applicant's friend, on the applicant's account, did not either send a copy of the medical certificate at all, or send it to the right place. Unfortunately there is no evidence that the Tribunal was aware that the applicant was ill, and as so often happens in cases where applicants do not attend Tribunal hearings, the Tribunal is not satisfied that the applicant has met the requirements for a protection visa.
The applicant is not legally represented. I have examined the Tribunal decision and supporting material myself independently of the applicant's claims. I am not able to discern any arguable case for jurisdictional error. I find that the Tribunal's decision is a credible clause decision as defined by ss.474(2) of the Migration Act and consequently no orders in the nature of declarations of Certiorari Mandamus or Prohibition will apply.
The application will be dismissed.
There is an application for costs on the part of the first respondent Minister. It is appropriate to make an order for costs. The amount sought is $3,800.00, which is within the amount provided by the scale. The applicant, however, is not in employment and survives on money sent by his family. I accept the fact that he has financial difficulties.
In the circumstances that is a matter I should take into account, and I will allow four months to pay.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 17 October 2007
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