SZLYT v Minister for Immigration
[2008] FMCA 1334
•14 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLYT v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1334 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal’s fact finding cannot be reviewed in judicial review proceedings – s.424A requires notification of information, not the supply of copy documents – Tribunal’s election not to make enquiries was not unreasonable in the Wednesbury sense and did not disclose a miscarriage of discretion – satisfaction of s.424A(1)(b) obligation is determined objectively. |
| Migration Act 1958, ss.424, 424A |
| Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 House v King (1936) 55 CLR 499 Elrifai v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1484 |
| Applicant: | SZLYT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 295 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 17 September 2008 |
| Date of Last Submission: | 17 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 October 2008 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr J. Smith |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 295 of 2008
| SZLYT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh where, he claims, he was a member of the Awami League. He alleges that he supported Awami League candidates in the 1991, 1996 and 2001 elections, became a renowned student leader and that this led to him being a target for the BNP and Jamat-i-Islami. He claims to fear persecution in Bangladesh because of his association with the Awami League.
The applicant arrived in Australia on 20 June 2007 and later lodged an application for a protection visa. This was refused by the Minister’s delegate on 21 August 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 16 of the Tribunal’s decision (Court Book (“CB”) pages 182 – 194). Relevantly, they are in summary:
In a statement attached to his protection visa application the applicant made the following claims:
a)the applicant became involved with the Bangladesh Chatra League, the student wing of the Bangladesh Awami League, in 1986 and was actively involved in supporting the Awami League in elections and influencing young people to vote for them;
b)when the BNP government came to power in 1991 he could no longer stay in his home town as he faced serious oppression from his College’s administration. Consequently, he went to Dhaka to study;
c)after completing his degree he joined the Awami League and in 1994 he was elected to the position of Vice President of the Babugonj Thana Awami League;
d)on 3 October 2001 BNP and Jamat-i-Islami cadres ransacked and looted his house, mercilessly beat his brother and warned him that if he did not leave the area he would be killed;
e)in 2003 he was elected to the position of executive member of the Barisal district Awami League;
f)on 27 October 2003 BNP and Jamat-i-Islami cadres attacked and injured him in broad daylight. He was left unconscious and treated in a clinic for a week;
g)in July 2004 he was again beaten by the local BNP and the police. A number of false cases were filed against him to destroy his political future;
h)he had no alternative but to leave the country and in January 2005 he went to South Korea; and
i)if he goes back to Bangladesh he will be persecuted. He is involved in a movement against the present caretaker government.
At the Tribunal hearing on 22 November 2007 the applicant made the following additional claims:
a)he left Bangladesh to save his life as all leaders were being arrested by the Rapid Action Battalion (“RAB”). The government was trying to abolish the Awami League and arrest and kill the leaders and activists like him. There were false cases against him and the police were looking for people like him;
b)in Bangladesh he managed the family business importing and exporting grocery items and for the two and a half years he was in Korea his import and export activities in Korea were carried out for the family business;
c)the applicant had also been harmed in Dhaka when he attended meetings and demonstrations;
d)there were two arms and bomb cases brought against him in December 2004 and although he was not arrested on these charges he knew of them and the police were looking for him. He avoided the police and visited his area in secret. Sometimes he even bribed the police;
e)in Dhaka he was in hiding, avoiding the BNP, Jamat-i-Islam and the police all the time. The police approached him frequently and chased him;
f)he made two return visits to Bangladesh from Korea as his mother was sick and he had to visit her. A friend who was an army officer facilitated his travel and gave him reason to hope that under the caretaker government everything would be well; and
g)he had chosen South Korea after exploring options in four different places but he did not seek protection in South Korea as he learned he was not able to obtain protection there.
On 7 December 2007 the Tribunal wrote to the applicant inviting him to comment on information it considered might be adverse to his protection visa application. On 24 December 2007 the applicant’s adviser responded, making the following additional claims:
a)the applicant was living in Dhaka on and off and regularly went to his home town and worked for the Awami league;
b)he did not indicate that he was attacked in Dhaka but he was attacked on a number of occasions in his home town; and
c)he had sought protection in South Korea but was told the country does not provide assistance to asylum seekers and he did not know whether or not this information was correct.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal was not satisfied as to the credibility of the applicant’s claims concerning his political leadership role in the Awami League. The Tribunal was not satisfied of the truth of these claims, noting that:
i)his responses at the hearing when asked a number of times to explain his political activities were notably vague, brief and uninformative and did not appear to be based on authentic first-hand experience;
ii)he could not describe with some degree of circumstantial detail the responsibilities and activities which his claimed leadership positions entailed;
iii)his claim to have lived with his family for six years in Dhaka, approximately 100km away from the party’s district body in the applicant’s home locality, was inconsistent with his claims of close involvement in the party’s activities there;
iv)the applicant’s evidence concerning the harm he alleged he suffered as a consequence of his political activities was vague, inconsistent and lacked credibility;
v)the applicant’s oral evidence contained a range of new claims about the harm he had suffered which were not raised in his statutory declaration but which could reasonably be expected to have been important and significant to him; and
vi)the applicant’s claim to have lived in hiding was inconsistent with the information in his statutory declaration that he lived at the same address in Dhaka from 1997 up to the time of his departure for South Korea in January 2005;
b)although the applicant may have supported the Awami League and been a member of the party, the Tribunal was not satisfied that he was a leader of the party in his area or that he has a political profile in Bangladesh for this reason;
c)the Tribunal was not satisfied that the applicant’s actions which were related to his stay in South Korea and his travels while based there were consistent with those of a person who fled his country to save his life. It was also not satisfied that the applicant feared he would be killed or otherwise harmed during the period in which he was living in South Korea, noting that:
i)at the Tribunal hearing he said that he had not claimed protection in South Korea as he had been advised that it was not available. This was inconsistent with his response to the Tribunal’s letter of 7 December 2007 in which he said he did apply for protection there;
ii)despite this the Tribunal noted the applicant failed to take any other steps during the following two and a half years to obtain protection in a third country; and
iii)he made two voluntary visits to Bangladesh towards the end of his stay in South Korea, travelling on his own passport each time, hoping that the caretaker government would not cause him problems; and
d)nothing in the independent country information available to the Tribunal supported the applicant’s contention that the Awami League was being singled out for persecution by the caretaker government or that the Awami League’s leaders and activists were being killed.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
(1)The Refugee Review Tribunal (the Tribunal) made a jurisdictional error that the Tribunal mentioned, ‘I am not satisfied that he was as he claims, a leader of the party in his area or that he has a political profile for this reason in Bangladesh.’
(2)The Tribunal made a jurisdictional error when it did not disclose the information it had received from DFAT because DFAT is a part of administration. The information was not for the public and the information was asked by the Tribunal to reject the claim.
(3)The Tribunal made a jurisdictional error when it rejected the applicant’s claim on the basis of the Independent country information because country information support applicant’s claim for protection.
(4)The Tribunal made a jurisdictional error that it did not give the applicant the information which is the reason or part of the reason to reject the applicant’s claim under s.424A of the Migration Act 1958 (The Act).
(5)The applicant did not understand that why the Tribunal did not allow his claim where the evidences and the independent country information and the information before the Tribunal supported his claim for protection.
The applicant made various additional allegations during the course of his oral submissions to the Court.
I turn first to the grounds pleaded in the amended application.
Incorrect finding concerning the applicant’s political involvement
The applicant particularises the first allegation pleaded in the amended application in the following terms:
Political profile is not a requirement for protection. The applicant political opinion and fear of persecution for that opinion is the essential criteria for persecution.
Although the applicant is correct to say that a political profile is not a requirement which has to be satisfied before the Tribunal can be satisfied that a person has a well-founded fear of persecution for a Convention reason based on their political views or activities, the first ground pleaded in the amended application is, in reality, a challenge to the Tribunal’s factual conclusion that the applicant had no such profile. Findings of fact of this nature are matters solely for the Tribunal and cannot be reviewed by the Court in judicial review proceedings such as these. For this reason, even if the Tribunal’s finding concerning the applicant’s political activities was incorrect, this would not be a basis upon which to find a jurisdictional error and thus be a basis for setting the Tribunal’s decision aside.
Breach of s.424A – failure to serve DFAT report
The report from the Department of Foreign Affairs and Trade (“DFAT”) to which the applicant makes reference in the second ground pleaded in the amended application was dated 3 May 2007 and is reproduced at pages 16 – 18 of the Tribunal’s decision (CB 194 – 196). A review of the material contained in that report discloses that it is information that was not specifically about the applicant or any other person but dealt with the then-current situation in Bangladesh and relevant aspects of the lives of Bangladeshis. As such, it is information falling within the scope of s.424A(3)(a) which means that the information contained in the report was not required to be notified to the applicant pursuant to s.424A(1).
Further, in his oral submissions, the applicant said that the Tribunal erred by not providing him with a copy of the DFAT report. Even had s.424A(1) applied to the information in the report, that subsection would not have required the actual document be supplied to the applicant. All the subsection requires is that relevant information be provided to an applicant; it does not require provision of any particular document.
Tribunal erroneously preferred some country information over other country information
The applicant particularised his third pleaded allegation in the following terms:
(i)The report of the Tribunal support applicant’s claim and this is an update report collected by the Tribunal (CB-218 to 228) this report supports applicant claims and the DFAT report is not an update and this report is for only the Tribunal.
(ii)The Tribunal did not do investigation regarding the letters dated 12/09/2007 & 20/10/2007 (CB-78 &79) and without investigation the comment of the Tribunal on the letters is very unfair the Tribunal should have investigate through DFAT.
The first thing to be said about this allegation is that the weight which is accorded to any particular information is a matter solely for the Tribunal as part of its fact-finding function. That the Tribunal may prefer some information over other information, and may even in good faith prefer incorrect information over correct information, does not amount to jurisdictional error.
Neither is the Tribunal obliged to undertake inquiries except in the most unusual of circumstances: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437; Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16. Under s.424 of the Act the Tribunal has a discretion to seek any information which it considers relevant. In relation to the two Awami League letters (CB 78, 79) tendered by the applicant to the Tribunal as evidence of his Awami League activities and claim to fear persecution arising out of those activities, the Tribunal was willing to accept that they were written by the two leaders shown to be their authors. However, the Tribunal was not satisfied that any weight could be placed on those letters because independent country information in the Tribunal’s possession indicated that
… leaders of the Awami League are prepared to write letters in support of people who have supported the Party in order to help them with their immigration or refugee claims. (CB 198)
In such circumstances, the fact that the Tribunal did not seek to make further inquiries in relation to those letters was not unreasonable in the sense discussed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and nor does it indicate a miscarriage of discretion of the sort discussed in House v King (1936) 55 CLR 499.
For these reasons, the third ground pleaded in the amended application does not disclose jurisdictional error on the part of the Tribunal.
Breach of s.424A
The fourth allegation pleaded in the amended application is particularised as follows:
The letter of the Tribunal on 7 December 2007 pursuant to s.424A was not sent according to law because the paragraph 2 of the letter refers independent country information but that is not independent country information that is the information received by the Tribunal in response to questions about supporting letters provided in another case on 5 November 2004 and the applicant was not able to understand that letter pursuant to s.424A.
The s.424A(1) notice dated 7 December 2007 which the Tribunal gave to the applicant is reproduced at CB 163 – 166. The second numbered paragraph, referred to in the particulars to this ground, was expressed in the following terms:
As put to you at the Tribunal hearing independent country information available to the Tribunal indicates that Awami League members may be prepared to write reference letters for former supporters of the Party in a humanitarian effort to help them. Additionally, as also explained to you at the hearing, the content of the letter said to have been written by the Vice President of the Babugonj Branch of the Party seems to indicate that it refers only to the former BNP-Jamat i Islami government of Bangladesh rather than the current caretaker government, despite the fact that the letter is dated 20 October 2007. Finally, the letterhead used for both letters appears to have been produced on a colour printer rather than on a printing press which, as you said, would have been the normal economical method of writing such letters.
This information is relevant for the review of your case because it may raise doubts about the weight which the Tribunal can place on the two letters submitted by you which are said to have been written by Awami League leaders in Barisal.
The particulars quoted above at [21] refer to information received by the Tribunal on 5 November 2004. This is a reference to information provided to the Tribunal by DFAT which is referred to at CB 196. It is the independent country information referred to at the commencement of the passage from the s.424A(1) notice quoted above at [22]. As independent country information, it was not required to be supplied to the applicant for the reasons discussed above at [14].
The applicant further states in his particulars of this allegation that he could not understand paragraph 2 of the s.424A(1) notice. The applicant has not explained what was unclear or confusing about this aspect of the notice and why it may have failed to satisfy the Tribunal’s obligation under s.424A(1)(b) that it ensure, as far as reasonably practicable, that he understood why the information particularised in the notice was relevant to the review. On an objective level, this submission cannot be accepted. The Tribunal squarely put to the applicant that the credibility of the information contained in the two Awami League letters was in issue, most specifically because of the information obtained from DFAT in 2004. And indeed whatever might have been the applicant’s subjective understanding, the requirement found in s.424A(1)(b) is an objective one which does not require a particular applicant to have actually understood the relevance to the Tribunal’s review of the information particularised in a s.424A(1) notice. The qualification of reasonable practicability limits the Tribunal’s obligation to a requirement of clarity of expression and presentation commensurate with the applicant’s circumstances: Elrifai v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1484 at [41]. Moreover, and in addition to the objective clarity of the notice as already observed, in this case the notice in question was addressed to the applicant’s legally qualified adviser, who would then communicate it to the applicant. In such circumstances there can be no doubt that the notice met the requirements of s.424A(1)(b). It might also be noted that the applicant’s adviser supplied a response to the s.424A(1) notice on 24 December 2007 (CB 168) and made no complaint about its comprehensibility.
Consequently, the fourth ground pleaded in the amended application is not made out.
Challenge to the finding on the merits of the application
The applicant particularised the fifth allegation in his amended application by reference to information which, it can be presumed, might have been the basis for a finding in his favour. However, the Court is not empowered to undertake a review of the merits of an application to the Tribunal; it may only undertake a review to determine whether the decision is affected by jurisdictional error. As a result, the fifth ground pleaded in the amended application does not disclose a basis upon which the Tribunal’s decision might be set aside.
Tribunal made deliberate mistake in saying that the applicant’s life was not in danger in Bangladesh
This was a ground raised by the applicant at the hearing in this Court and challenges the Tribunal’s conclusion that he did not have a well-founded fear of persecution in Bangladesh notwithstanding that the Tribunal had accepted that he had been a member of the Awami League. To the extent that this allegation challenges the Tribunal’s findings on the merits of his review application, for the reasons discussed above at [26], it does not demonstrate jurisdictional error on the Tribunal’s part.
To the extent that this allegation may be one of bias or lack of good faith, it is apparent that the Tribunal undertook a detailed analysis of the various allegations advanced by the applicant and gave them proper consideration. No evidence was adduced by the applicant or was otherwise before the Court which would support a finding of prejudgment, an apprehension of prejudgment or a failure by the Tribunal to discharge its function conscientiously.
Moreover, the Tribunal’s reasons disclosed why mere membership of the Awami League, or even activity at the level alleged by the applicant, would not, in its view, have led to persecution under the Bangladeshi caretaker government. The applicant’s reference to the activities of that government’s RAB was considered by the Tribunal when it said in its findings and reasons that there was nothing in the information before it which supported the applicant’s contention that the Awami League was being singled out for persecution by the Bangladeshi government or that the league’s leaders and activists were being killed. The Tribunal went on to say that it was not satisfied that there was any reason why the applicant would be targeted for arrest or any other form of harm by that government, the RAB or any other Bangladeshi authority (CB 199).
Imaginary facts
A further matter raised by the applicant in his oral submissions was that the Tribunal relied on imaginary facts when reaching its conclusion. The applicant did not expand on what he meant by this allegation but a review of the Tribunal’s decision record demonstrates that it had a rational basis grounded on evidence for each of the conclusions which it reached including its ultimate finding on the merits of the application before it.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 14 October 2008
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