SZLTP v Minister for Immigration
[2008] FMCA 889
•12 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLTP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 889 |
| MIGRATION – Review of RRT decision – where Tribunal indicated to applicant concerns that applicant’s parents were seeking to have their own unsuccessful claims reconsidered – whether Tribunal did not take into account applicant’s identity – whether applicant denied procedural fairness – whether applicant should have been provided with country information – impermissible merits review. |
| Migration Act 1958 (Cth), ss.424A, 422B |
| SZDFO v Minister for Immigration [2004] FCA 1192 NARE v Minister for Immigration [2004] FCA 554 NAST v Minister for Immigration [2004] FCA 86 |
| Applicant: | SZLTP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3842 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 12 June 2008 |
| Date of Last Submission: | 12 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 June 2008 |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondent: | Mr Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Litigation guardian of the applicant to pay the first respondent’s costs assessed in the sum of $4,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3842 of 2007
| SZLTP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application by the two-year old son of a former visa applicant and his wife from Bangladesh. The son was born in Australia where his father has been since 1995. The father has consented to be the litigation guardian of the son.
The application for a protection visa was filed with the Department of Immigration and Citizenship on 9 July 2007. On 6 August 2007 a delegate of the Minister refused to grant the visa. On 4 September 2007 the applicant applied for a review of the delegate's decision and the Tribunal wrote to the applicant on 2 October 2007 advising him that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing.
On the same day the Tribunal wrote a letter, pursuant to the provisions of s.424A of the Migration Act 1958 (Cth) (“the Act”), inviting the applicant to comment on certain information that the Tribunal considered would, subject to any comments he might make, be the reason or part of the reason for affirming the decision that was under review. The information which was referred to in that letter dealt with the decisions that had been made by the Tribunal and affirmed by the courts in applications of the parents and the applicant's sister. It also noted that at [CB97]:
"The statement you submitted with your primary application and the accompanying unsigned document in the form of a Statutory Declaration refer in detail to what you claim to be your father's situation, past and present, but say little about your own situation …
This information is relevant to the review because it may be the reason or part of the reason for the Tribunal to conclude
- that in fact you do not yourself fear persecution or have a well founded fear of persecution and that this application has been submitted by your parents after their own applications for protection were unsuccessful, seeking, at least in part, to have their own unsuccessful claims reconsidered and/or
- that there is no necessary link between your parents' (or your father's) situation and your own, or, alternatively, that no link has been demonstrated;
- that your parents do (or your father does) not have a well founded fear of persecution and that, as a result, you do not."
The original hearing date was vacated and another fixed for 16 November 2007. On that date the applicant was represented by his father. A witness also gave evidence to the Tribunal. At the end of the hearing the Tribunal delivered an ex tempore decision which was signed on 22 November 2007.
The applicant's claim to be a person to whom Australia owed protection obligations is annexed to his application for a protection visa and found commencing at [CB35]. At [CB37], after three pages of information about his father, the applicant says:
"My claims are based on my father political concern, and are also now founded of significant change in the political situation in Bangladesh...
I was born in Australia. I never had been in Bangladesh. My claims are grounded in events, that my father active involvement with political party. I do have a fear which is well founded in the circumstances in the there is a real chance that I would find myself a victim of persecution if I returned to Bangladesh having regard to the evidence submitted.
My well-founded fear arises out of my father involvement with political party and also the widespread and non-localized treatment of political opponents by the ruling army backed government in an emergency law. In such circumstances the principle of relocation is inapplicable.
The persecution I fear meets the legal requirements. I would request the authority in changing circumstance please reassess my claim and make favourable decision on me."
This statement by the applicant appears to be repeated substantially at [CB92]-[95] and sent to the Tribunal. There would seem to me to be justification for the Tribunal's concern expressed in the s.424A letter that the application had been submitted by his parents seeking at least in part to have their own unsuccessful claims reconsidered.
At the hearing the Tribunal questioned the applicant’s father upon the statements, and in particular upon his view that the situation in Bangladesh had changed considerably since his own application had been declined. The statement which was submitted showed that the applicant's father had adapted well into the Australian Bangladeshi community and had become a prominent member. It appears that he is a playwright of some distinction and that there have been performances of his works in Australia that were not only attended by high ranking members of the Bangladeshi High Commission, but were favoured with performances by Bangladeshi actors brought over especially. The father claimed that if he returned now to Bangladesh he would be subject to persecution, that the current army government in Bangladesh was unamicable to him and if that occurred his son would be in danger.
The Tribunal put to the father that his description of the situation in Bangladesh was different to the one that the Tribunal had come to on the basis of the independent country information available to it. In particular, the level of violence referred to by the father had been very much reduced. The Tribunal also put to the father that the success which he had had in Australia, as evidenced by the performance of his plays in the presence of important politicians from Bangladesh indicated that he was in good standing with the government, and would therefore not have a well founded fear of persecution.
Independently, the Tribunal also suggested to the applicant that even if the worst came to the worst and he was arrested in that country, it would not necessarily mean that his son would suffer the same fate. There was no evidence that the mother was in any danger and the applicant's father had told the Tribunal that both he and his wife had relations in Bangladesh.
The applicant's father responded to these matters but the Tribunal did not accept that those responses satisfied it that he had a well-founded fear of persecution. The Tribunal took the views expressed earlier concerning both the applicant's father's situation and that regarding the son. In regard to the son's situation the Tribunal said at [CB142]:
"Finally, quite independently of the foregoing, I do not accept that his son would himself suffer harm amounting to persecution for a Convention reason. The applicant's father did not claim that his son would be harmed by people wishing indirectly to make a point to him. Neither did he argue that his being imprisoned or killed of itself constituted persecution of his son. I would not have accepted the claims had they been made. His argument was that if something were to happen to him, there would be no-one to look after his son. I do not accept that. His mother would be capable of working, as the applicant's father acknowledged at hearing. In addition, both parents have relatives in Bangladesh. Given the importance of family in the culture of Bangladesh it is reasonable to assume that the families on both sides would rally around to take care of the applicant, should the father be absent or unavailable for any reason. I do not accept that, in those circumstances, there is a real chance that he would suffer harm amounting to persecution for a Convention reason.”
On 14 December 2007 the applicant, through his litigation guardian, filed an application with this court seeking review of the decision of the Tribunal. The grounds of the application were fivefold. The first was that the Tribunal failed to accord natural justice. The particulars indicate that the application had been lodged on the basis of circumstantial changes in Bangladesh since the father's original application. The complaint is that the Tribunal did not take this into account. It is clear from a reading of the Tribunal's decision, that this was very much taken into account and this ground cannot be sustained.
The second ground is that the Tribunal failed to realise the genuine issue of persecution. In the particulars it is suggested that the Tribunal failed to realise the consequences of this case. This complaint is no more than a request for a merits review of the Tribunal's decision, which is not available from this court.
The third ground is that the Tribunal failed to consider “my legal status and welfare”. The particulars are:
"I claimed before the Tribunal that I was born in Australia. I [do] not hold any Bangladeshi passport or ID. Without any prove of identity the Bangladesh authority would not accept me as a citizen of Bangladesh. I was grown up in the environment of Australian culture and values. If I forced to go back I have no place to go. I would be [a] stranger. The Tribunal did not take into account this issue."
There are actually several issues here. The most important, for the purposes of a review, is the argument that the Tribunal did not take into account the applicant's identity so far as the Bangladesh government was concerned. There is absolutely nothing in the documents that I have seen that would indicate that this was an argument raised, and if it had been raised and disregarded then the applicant should have provided me with some evidence. The other matters really go to merits and again I am unable to provide such a review.
The fourth matter raised by the applicant is that he was denied procedural fairness at the time of the assessment of his claim. The particulars are:
“The Tribunal did not consider properly the applicant individual [c]ircumstances. The Tribunal needed to consider whether the applicant had a [w]ell-founded fear of persecution by reason of his father['s] political opinions if [he were] returned to Bangladesh.”
Once again it is my view, from a reading of the Tribunal decision, that it did consider the applicant's individual circumstances. In fact, it made a particular point of them in the s.424A letter. It certainly considered the relationship between his father's political opinions and the applicant's claims. This ground cannot be sustained.
Finally, the applicant says that the Tribunal relied on “additional and independent reason information” in assessing the applicant's claims in breach of the common law rules of procedural fairness. The Tribunal did not provide the applicant with any of the documents or put the substance of those assertions contained in the documents and relied upon by the Tribunal to the applicant or inform the applicant that the Tribunal would rely on the documents or give the applicant an opportunity to respond to the assertions in the documents. This would appear to be a reference to some independent country information obtained by the Tribunal on 27 September 2007 from the Australian High Commission. This is referred to in detail at [CB139]. There are a number of things to be said about this allegation. First, the hearing before the Tribunal was one to which the provisions of s.422B of the Act applied. That section provides that Div 4 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule. Section 424A makes it clear that independent country information of the type referred to is excluded from the provisions of sub-s.(1) of that section that requires the Tribunal to give particulars of such information to an applicant. Mr Reilly states that if the applicant is arguing that the failure to provide this information to the applicant constituted a breach of s.422B(3), this section is only an exhortation and does not provide any private rights to an individual applicant. It cannot be taken, he argues, to effectively negate the provisions of s.422B(1).
This matter was not argued by the applicant either orally or in the written submissions which were provided to me. I think there is much force in what Mr Reilly says, but more importantly I am not convinced that this country information was not put to the applicant in one way or another. I have no record of the Tribunal hearing, either oral or by transcript, and as I have already mentioned, the Tribunal did put to the applicant that the level of violence was very much reduced in Bangladesh compared to the past. That is the gravamen of the independent country information. For these reasons I do not think that the applicant's claims can be sustained.
Before me today the applicant sought to argue that his son would suffer from potential child abuse if he was returned to Bangladesh. It was not suggested that this abuse would come from the applicant's family, but from other members of society. This is not an argument that was put to the Tribunal, and is therefore not one that I can consider. The applicant tried to make several other arguments which suffer from the same problem, namely that they were, in effect, evidence either of the current situation as opposed to that when the Tribunal made its decision, or details of evidence that might persuade another Tribunal to disregard some of the independent country information that this Tribunal had relied upon.
It is well that I explain in these reasons to the applicant why I am unable to take these matters into account. The role of the courts in these review applications have been articulately and sympathetically expressed by Allsop J in cases such as SZDFO v Ministerfor Immigration [2004] FCA 1192 at [8]-[12]; NARE v Ministerfor Immigration [2004] FCA 554 at [10]; NAST v Ministerfor Immigration [2004] FCA 86 at [6]-[7]. Perhaps a short quotation from NARE would be appropriate:
“What the applicant may well not appreciate, not being a lawyer, is that the process of purpose of review to this Court does not and cannot involve simple re-finding of facts found by the Tribunal. Rather the review is, broadly speaking, to ensure that the Tribunal has made the decision lawfully - for instance asking itself the right question, affording procedural fairness, dealing with all matters which the Migration Act 1958 (Cth) (the “Act”) says must be dealt with, not dealing with matters extraneous to its task and correctly understanding the law to apply. It is not the Court's job to review the factual findings of the Tribunal unless their quality (or lack thereof) is such as to portray a failure to undertake properly the required task. This is why it was not open to the primary judge to receive fresh evidence going to factual matters decided by the Tribunal in an attempt to demonstrate factual errors in those conclusions by the Tribunal.”
I trust that the applicant, who has gone through all three federal courts in pursuance of his own claims, will understand the barriers placed in the way of the court from providing a merits review of the Tribunal decision and why I was unable to assess what may well be convincing evidence of a changed situation since the Tribunal's decision.
As I am unable to find any grounds upon which this decision should be reviewed I must dismiss the application, which I do. The litigation guardian of the applicant, who I will not name because he was himself an applicant, pay the respondent's costs which I assess in the sum of $4300.00.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 26 June 2008
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