SZLLX v Minister for Immigration - [2008] FMCA 86

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLLX v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 86

MIGRATION – RRT decision – Bangladeshi applicant fearing persecution for political activities – claims disbelieved by Tribunal – Tribunal found no real chance of harm – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.425

SZFDE & Ors v Minister for Immigration & Citizenship [2007] 237 ALR 64

Applicant:

SZLLX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3165 of 2007

Judgment of:

Smith FM

Hearing date:

23 January 2008

Delivered at:

Sydney

Delivered on:

23 January 2008

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Ms V McWilliam

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3165 of 2007

SZLLX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant is a young man who arrived in Australia on a student visa from Bangladesh in February 2003. He pursued courses here, and returned to Bangladesh on a brief visit in January and February 2005. His student visa expired on 15 March 2005. The applicant then remained in Australia, unlawfully working in various jobs. He was taken into immigration detention in March 2006. He then pursued avenues for remaining in Australia involving applications for further student visas, applications for discretionary decisions by the Minister, and judicial review litigation up to the High Court in relation to the decisions in respect of his student visa application. When that litigation came to an end, he sought assistance to make a protection visa application, and was referred to an experienced migration agent for that purpose. He was held in immigration detention at that time, and is in detention now.
An application for a protection visa was lodged on 26 July 2007. In a statement attached to the application, the applicant claimed to have been an active member in the Bangladesh Awami League while at school in 1999, and in later years at college in Bangladesh. He claimed that his uncle was also active in politics for the Awami League, and that their activities led to threats being made to the applicant and his family, which caused the uncle to leave Bangladesh and the applicant to come to Australia.
In relation to his return to Bangladesh in 2005, he claimed that he did so because his uncle told him that it was then safe. However, he claimed that two thugs acting on behalf of the BNP Party, who had previously made threats to him, repeated their threats of violence and threatened to kidnap him, and that he only escaped from Bangladesh by hiding and altering the date for his return.
A delegate refused the application on 31 July 2007. The applicant appealed to the Refugee Review Tribunal, assisted by his migration agent. The Tribunal scheduled, and rescheduled, a number of hearings to accommodate the applicant's agent and the applicant. He attended a hearing on 31 August 2007, and this was adjourned at the request of the applicant because, although he appeared fluent in English, he wished to explain his claims through an interpreter. At a hearing on 4 September 2007, the applicant was provided with the assistance of an interpreter, and the Tribunal gives a lengthy description of its hearing held on that day. The applicant's advisor was present, and the applicant and his advisers were given a week to lodge further submissions and evidence if they wished.
Further submissions were lodged, with a statement by the applicant. The advisor also responded in writing to a letter served on the applicant under the Migration Act s. 424A, which invited comments on information which the Tribunal thought was adverse to the applicant's credibility. This included particulars of his history in Australia, his immigration to Australia, and statements that he had made after being taken into detention, both to immigration officers and to the Migration Review Tribunal, explaining his reluctance to return home without any reference to fears of persecution. The letter also referred to the applicant’s inconsistent statements as to the reasons for his travel to Bangladesh in January 2005 and his return to Australia.
In a decision handed down on 13 September 2007, the Tribunal affirmed the delegate's decision, and provided a lengthy and carefully written statement of reasons. The Tribunal fully and accurately identified the claims made by the applicant, the history of the matter, and his evidence. It considered recent country information concerning the state of affairs in Bangladesh.
Under the heading "Findings and Reasons", the Tribunal considered the major difficulties facing the credibility of the applicant’s refugee claims, arising from the delay in making his application for protection and his previous statements. The Tribunal carefully considered the applicant's explanations in relation to these matters, and rejected them. It concluded:
The Tribunal finds compelling evidence that the applicant does not fear persecution, but that his refugee claims are a recent invention. The relevant factors are:- his delay in seeking protection before July 2007, his repeated references before that time to financial and family concerns, and his lack of any prior reference to a fear of persecution.
The Tribunal, however, said that it would be unsafe to rely on those circumstances alone, and on its concerns about the applicant's general credibility, to dismiss all his refugee claims, particularly given Bangladesh's current political instability. It therefore carefully considered the intrinsic merits of the applicant’s claims of a history of political involvement and persecution.
The Tribunal gave reasons why it did not accept that the applicant or his uncle had any active involvement in the Awami League or had suffered persecution as a result. The Tribunal did not accept that the applicant had been targeted by BNP thugs, either before he came to Australia in 2003 or in the course of his return in 2005.
The Tribunal also considered the position of the applicant if he returned to Bangladesh in its present political situation. It did not accept that he had any genuine ongoing interest in the Awami League, or in Bangladeshi politics, and therefore thought that there was not a real chance that the applicant had a well‑founded fear of Convention‑related persecution if he returned. It said:
The applicant's support for the Awami League is low profile and his commitment to it is insignificant. The Tribunal does not accept that he will be motivated to engage in any political activities if he returns to Bangladesh; that his mere support for the Awami League will attract any adverse attention; or that he will be perceived as a political activist or engaged supporter for any party.
The applicant now asks the Court to set aside the Tribunal's decision and to order it to reconsider his refugee claims. I can only make those orders if I am satisfied that the decision was affected by jurisdictional error. I do not have authority to decide whether the applicant's refugee claims are true, nor whether he should be granted a protection visa or any other permission to stay in Australia.
The applicant's application has, in effect, five grounds of review:
1)Migration Act 1958 was not observed properly and
2)the RRT Member, Mr James Silva was not acting in good faith in making decision.
3)The RRT decision is not reasonably capable of reference to the decision making power given to RRT member.
4)Moreover DIAC officers misled me prior to my application to DIAC.
5)The RRT deprived me of natural justice
In relation to the first ground, that the Migration Act was not “observed properly”, I have carefully considered the procedures followed by the Tribunal, and am unable to identify any arguable departure from the statutory procedures required of the Tribunal when reviewing a decision made concerning the refusal of a protection visa to a person held in immigration detention.
In relation to the allegation of bad faith on the part of the Tribunal, no substance whatsoever for this is shown in the material before me. Indeed, in my opinion, the Tribunal member's statement of reasons shows an impressive attempt to consider the applicant's claims fairly and fully, with an open mind.
In relation to the third ground, in my opinion, the decision of the Tribunal is entirely “capable of reference to the decision‑making power given to RRT member”.
In relation to the fourth ground, the contention is obscure and has not been illuminated by any evidence or submission put before the Court by the applicant. The ground may refer to the explanation given by the applicant to the Tribunal for his pursuit of other avenues for staying in Australia, before making a claim for protection. The Tribunal considered those explanations, and rejected them as “spurious” for reasons which, in my opinion, show no error; and certainly no jurisdictional error.
In relation to the fifth ground, I am unable to identify any departure from procedural fairness, taking into account the provisions of the Migration Act which required the Tribunal in the present case to proceed with expedition. The applicant was given opportunity to attend a hearing, assisted by his agent, and it was appropriately adjourned to allow an interpreter. He was given the opportunity at a hearing, and after it, to present his evidence in support of his claims.
The applicant maintained today that he was not psychologically fit to participate in a hearing, apparently referring to the first hearing, but possibly also to the second. However, he has not presented any evidence to contradict the Tribunal's description of how it satisfied itself that he was able to avail himself of the opportunity given to him. At the start of its findings and reasons, the Tribunal said:
During this review, particularly at the first hearing session, the applicant referred to himself as having psychological problems, such as insomnia, depression and hallucinations. He also said that his memory was poor. His advisor also mentioned health concerns. The Tribunal has received no medical reports questioning the applicant’s capacity to give evidence. Indeed, during the first session of the hearing, the advisor told the Tribunal that a psychiatrist had just informed her by telephone (during a brief adjournment in the hearing) that the applicant was competent.
The Tribunal found the applicant’s oral evidence to be lucid and relevant, particularly at the second hearing session when he appeared more confident. The Tribunal was mindful that the applicant is stressed about his detention, and conducted the hearing with due caution. It is satisfied that the applicant had a full opportunity and was able to present his claims and evidence.
I am not satisfied that, in this case, the Tribunal denied the applicant the opportunity required to be given to him under s.425 of the Migration Act.
The applicant today made criticisms of the assistance given to him by his agent. None of the criticisms he made appear to be supported on the evidence before me. However, assuming that the statements that he made to me are true or had some foundation, they would not reveal a ground for this Court to conclude that there was a failure of requirements under s.425, such as were found in the High Court in SZFDE & Ors v Minister for Immigration & Citizenship [2007] 237 ALR 64.
The applicant's other submissions to me today drew attention to his difficulty in presenting his refugee case to the Tribunal, and his judicial review case to this Court. I have taken into consideration all that he has said about the position he was in at that time, and is in now. However, endeavouring for myself, with the assistance of counsel for the Minister, to identify any arguable jurisdictional errors, I have been unable to identify any reason for setting aside the Tribunal's decision.
I am not satisfied that it was affected by any jurisdictional error. I must, therefore, dismiss the application.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 7 February 2008