SZLMS v Minister for Immigration

[2008] FMCA 753

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLMS v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 753

MIGRATION – RRT decision – Bangladeshi applicant fearing political persecution – Tribunal found no well‑founded fear, taking into account changes to government – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), ss.91R, 422B, 424A, 424A(1), 424A(3)(a), 425

Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425

Applicant: SZLMS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3213 of 2007

Judgment of: Smith FM

Hearing date: 29 May 2008

Delivered at: Sydney

Delivered on: 29 May 2008

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms A Crittenden

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed. 

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3213 of 2007

SZLMS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in March 2007, and on 26 April 2007 he applied for a protection visa against return to his country of nationality, Bangladesh.  In his application, he indicated that he was a young man who had been working in the United Arab Emirates since 2004, apart from a five‑month return to Bangladesh during 2005. 

2. A four page typed statement of claim set out his history in Bangladesh, which he claimed gave rise to a well‑founded fear of persecution if he returned, on the ground of his political opinions and activities. He had become a member of the student front of the Awami League in 1996 while at school, and had worked with leaders in Awami League activities. In 2000, he had become the publications secretary of a branch of the league, and had been on the executive committee of that branch. He had participated in their election campaign in 2001, in which the Awami League lost power and the BNP party took power. He claimed that he had suffered a serious physical assault in March 2003 from BNP activists, and that in August 2003 a demonstration which he led had been attacked, and he had managed to escape. After this incident he left for the UAE.

3. He claimed that during his return to Bangladesh in late 2004 and early 2005, the BNP activists asked him for money, and “when I denied paying any money false case was filed against me”. He said: “the risk of my life was increasing every day and I realised that my life was not safe”, so he returned to his employment in the UAE. He claimed to still be at risk if he returned to Bangladesh, notwithstanding that a caretaker government backed by the army had taken power and deposed the BNP government.

4. A delegate refused the application on 19 May 2007. The delegate referred to country information concerning the current situation in Bangladesh under the caretaker government, which suggested that public order had been significantly improved. The delegate also noted that “though the applicant claims to have major involvement in the Awami League, no documentary evidence has been provided to support his claims”, and that there was no evidence presented of false claims brought against him. The delegate formed the view that he was a person of no interest to the Bangladeshi authorities, and was not likely to be targeted if he returned.

5. The applicant appealed on 14 June 2007, with the assistance of a migration agent. The application form drew attention that: “any information, documents or submissions that you want the Tribunal to consider in support of your application” should be provided with the application or sent “as soon as possible”. A similar reminder was contained in letters sent to the agent by the Tribunal on 15 June 2007 which acknowledged the application, and also in a letter sent on 6 July 2007 which invited the applicant to attend a hearing.

6. The applicant did attend that hearing on 6 September 2007. He presented to the Tribunal some photographs showing him at the front of what he said was a demonstration, but no other corroboration of his claims. A transcript of the hearing is in evidence before me. This shows a relatively brief hearing, in which the Tribunal was particularly concerned to invite the applicant’s responses to information about the improved situation in Bangladesh for opponents of the BNP. However, the applicant was also given general opportunities to add to the information in the statement of his claims.

7. The transcript contains this exchange:  

   Applicant:There are some more documents that can be used as evidence to the RRT and I can give it to the Member which will make the life of the Member easier to understand and believe my claims.  As because they are emergency in the country, so I was unable to get them when I was leaving country but I can still get them from my sources.  

   Tribunal:When did you arrive in Australia? 

   Applicant:Six months ago. 

   Tribunal:So you have had six months to try and get these documents.  I mean I am not sure we can delay making a decision if there is going to be a lengthy delay in obtaining these documents. 

8. The applicant referred the Tribunal to his photographs, and said:  

   Applicant:This photograph depicts on 21 February, the day before 21 February, there was a meeting and it also tells about the demonstrations and the meetings. 

   Tribunal:So are they meetings and demonstrations of the Awami League? 

   Applicant:Yes, these are all of Awami League.  Our … President is present here. 

   Tribunal:Okay.  I will certainly take these into account.  There is a period before the decision is actually handed down regarding your application for review.  Typically there is a few weeks.  So if you are able to obtain any further supporting documents just send them to the Tribunal.  I will take them into account. 

   Applicant:If the Member can give me some more extra time, that would be really safe for me.  I can give you the true evidence. 

   Tribunal:As I said, you have had six months since arriving in Australia.  So I’m afraid I can’t give you an indefinite amount of time.  I will take into account anything you give me before the decision is handed down. 

   Applicant:Actually I was very new in this country, so it took time for me to get settled.  So as a result of that, I was unaware that what is the documentation I need to bring from, get from my country.  So that’s why it took a bit more time for me. 

   Tribunal:As I said, I will take into account any further documentation you provide before the decision is handed down.  Okay then? 

   The hearing then concluded. 

9. The applicant’s agent was not present at the hearing, but received a letter sent by the Tribunal dated 12 September 2007, notifying the applicant that the decision would be handed down on 20 September 2007. That letter was sent by facsimile on 12 September 2007.

10. The Tribunal did hand down its decision on that date, that is, 14 days after the hearing date.  The Tribunal affirmed the delegate’s decision. 

11. In its statement of reasons, the Tribunal summarised the claims made by the applicant in his statement, and referred to his evidence at the hearing, including the photographs. It referred to background information, in particular, a May 2007 report from the Department of Foreign Affairs and Trade about the caretaker government. It then relied upon that information in its brief reasons:

    The applicant claims that he has been persecuted in the past by people connected with the BNP and their coalition partners because of his role as an AL activist and office holder.  He claims that the situation for AL activists is not safe currently and that since the caretaker government came to power many AL leaders and activists have been arrested and detained without valid reasons.  The applicant claims that he fears for his life and that he will be killed by BNP members if he returns to Bangladesh. 

    The Tribunal notes that, except for a 5 month period, the applicant has been out of Bangladesh since he left for the UAE in 2003 at the age of 23.  The Tribunal accepts that while resident in Bangladesh the applicant has been involved in AL political activities but does not accept that he has ever assumed a senior role in the AL leadership.  The Tribunal does not accept that the applicant has a well‑founded fear of persecution for his political opinion or any of the other Convention reasons if he returns to Bangladesh.  In making this finding, the Tribunal has attached substantial weight to DFAT advice (reproduced above) that “politically motivated violence has all but disappeared under the current Caretaker Government” and that “political persecution of opponents has been practised by both the BNP and the Awami League (AL) in the past but this has ceased under the State of Emergency, which has deprived all parties of the machinery of state which they used corruptly for political persecution and personal vendettas conducted in the name of politics.”  

    Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.  Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa. 

12. The applicant now asks the Court to set aside the Tribunal’s decision and to send the matter back to the Tribunal. I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be given a protection visa or any other permission to stay in Australia.

13. The applicant has filed a number of documents raising many arguments in support of his application.

14. His original application contains four grounds. The first ground complains that the Tribunal failed “to ask me relevant question regarding my claim to persecutions I experienced in Bangladesh”.

15. However, in my opinion, there was no failure of any procedure required by the Tribunal in its conduct of the hearing to which the applicant was invited. The opportunity which the Tribunal is obliged under s.425 of the Migration Act 1958 (Cth) to give to applicants, according to a recent line of authorities in the High Court, is the opportunity to attend and “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. In my opinion, as shown in the transcript, the applicant was clearly given that opportunity. Moreover, the Tribunal exposed to the applicant what it regarded as the critical issue in the case, which was the significance of the changed political environment in Bangladesh. He was also given a general opportunity at the hearing to supplement his evidence already before the Tribunal, including by the presentation of any additional documentary or oral material. In my opinion, there is no basis for finding an error of jurisdiction because the Tribunal did not ask him additional questions about his claims.

16. The second ground contends that the Tribunal “failed to put the adverse materials to me and to enable me to have an opportunity to submit my explanations and material in reply to the alleged adverse materials”. This contention is not particularised in the original application, but is explained in later documents filed by the applicant, and in his submissions to me today. The adverse materials which are complained of are the contents of the general country information which the Tribunal took, in particular, from the DFAT report.

17. However, the Tribunal was not obliged to put that information to the applicant for written comment pursuant to the procedures under s.424A(1), by reason of the exclusion in s.424A(3)(a) of the Migration Act. The issue to which that material related was, in my opinion, clearly drawn to the attention of the applicant both by the delegate’s decision, and by the discussion which the Tribunal had with the applicant. In the course of that discussion the applicant was referred to the gist of the information which the Tribunal subsequently relied upon. I do not consider there was any procedural unfairness under any principles of law, whether they are applicable to the Tribunal or not.

18. The third ground of the application alleges that the Tribunal was actually biased or that there was an apprehension of bias. This is unparticularised in the original application and in the applicant’s later documents, except for a suggestion that the absence of further questioning on some aspects would give rise to an apprehension of bias.

19. However, in my opinion there is no substance to this ground. In my opinion, the transcript shows only that the Tribunal was genuinely attempting to perform its review function, in particular, by taking the applicant to the obviously important issue facing his refugee claims as a result of his long absence from Bangladesh and the change of the political environment there. I am not satisfied in relation to the tests for actual bias nor for apprehended bias identified by the High Court in Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425.

20. The fourth ground in the application contains two contentions. The first contention is that the Tribunal made its decision “without any valid reason that I will have no problem if I return back to my country” and “totally ignored my persecutions as an activist of Awami League”. However, these challenges to the merits of the Tribunal’s decision have no substance. The Tribunal’s decision was rational, and was based on the evidence before it.  In my opinion, it did address all the applicant’s claims and evidence in its findings. Because of the view it took as to the current situation in Bangladesh, it was not necessary for it to enter into a detailed examination of particular elements in his claimed history before the applicant left for the UAE.

21. The second element in Ground 4 of the application contends that “the Tribunal did not give me opportunity to present further the evidence after the hearing to proof my persecution for my political belief”. This contention has been further developed in the subsequent documents filed by the applicant and in his oral submissions to me today. He pointed to the exchange with the Tribunal at the end of the hearing which I have set out above. He submitted that he had been promised, or he had reasonably understood from what the Tribunal said, that he would be allowed four weeks at least to submit further documents, and that he was, therefore, denied an opportunity to submit documents. The nature of the documents which he says he was denied opportunity to submit is unclear, and he has not presented any evidence about this to the Court from himself or his agent.

22. In the present case, I do not consider that the Tribunal made any undertakings as to its post‑hearing activities which could give rise to a failure by it properly to complete its review, such as was found in Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1. I would not find, as was found in NAFF, that the Tribunal failed to consider the exchange at the hearing before it handed down its decision, so as to have left its review incomplete, since it referred to the exchange in its reasons.

23. There was no statutory obligation on the Tribunal to afford any further opportunities to the applicant to present more evidence. Even if principles of procedural fairness under normal principles could be implied into the provisions of the Migration Act in the face of s.422B, I would not find a failure of procedural fairness occurred arising from what was said by the Tribunal. In a context where the applicant and his agent were, or should have been, clearly on notice that documentary corroboration should be provided prior to or at the hearing, and where they had been given more than ample time to obtain and submit such documents, it was not unreasonable for the Tribunal to expect that any further documents would be forwarded very promptly after the hearing.

24. The Tribunal made no promise as to the period which would occur before it handed down its decision. The applicant and his agent were on notice from 12 September 2007 that this would occur on 20 September 2007. If the applicant had documents at that time, then he should have submitted them immediately. If he did not have documents at that time but was expecting them soon, then he should have made a further approach to the Tribunal for more time. In my opinion, he has not established that he has been denied a reasonable opportunity to obtain and present documents to the Tribunal. I am not satisfied that there has been any practical injustice to the applicant by reason of the procedures followed by the Tribunal or its statements at the hearing (cf. Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]‑[38], [106], [122], [149]).

25. The applicant’s amended application has been compiled from unhelpful precedents, and contains some contentions with no apparent relationship to the particular matter. Apart from the contentions which I have already addressed above, it makes obscure references to s.91R of the Migration Act. I am unable to discern any failure by the Tribunal to properly appreciate the effect of that section.

26. The amended application also criticises the Tribunal’s conclusions about the political situation in Bangladesh, and the information it relied upon. However, these contentions in my opinion go only to the merits of a decision which was open to the Tribunal on the material before it.

27. A further amended application was filed by the applicant on 12 February 2008, which appears to have been prepared with the assistance of the person to whom he was referred under the free legal advice scheme. This does not contain properly formulated grounds of jurisdictional error, but rolls up numerous contentions of jurisdictional error in the grounds and in the argumentative particulars. However, it appears to make the contentions which I have addressed above in relation to alleged breaches of s.424A, the Tribunal’s questioning of the applicant at the hearing, and the merits of its reliance on country information.

28. It makes contentions of procedural errors in relation to the alleged failure of the Tribunal to allow more opportunity for the applicant to lodge documentary material. I have addressed this issue above.

29. It also contends that the Tribunal failed to take into account the photographs given to the Tribunal by the applicant. I consider that the Tribunal probably did take into account the photographs. It referred to them when describing the hearing. Their content was not such that one would have expected particular discussion about them under the heading “Findings and Reasons”, since the Tribunal accepted that the applicant had been involved in Awami League political activities.

30. In relation to the various criticisms of the Tribunal’s questioning contained in the further amended application and written and oral submissions made by the applicant in support, I do not accept that the applicant was denied any of the opportunities to present more details or further evidence required under s.425 of the Migration Act. I do not accept that there was any selectivity or unfairness in the questioning of the applicant about the current situation in Bangladesh. I can find no evidence in the transcript that the applicant was “cut short” and denied an opportunity to present more details to the Tribunal if he wished to. I reject the suggestion that the Tribunal failed to consider the applicant’s circumstances.

1. After considering all the matters put to the Court in the applicant’s documents and in his submissions to me today, I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error.  I must therefore dismiss the application. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  10 June 2008