SZMAG v Minister for Immigration
[2008] FMCA 599
•6 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMAG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 599 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of Bangladesh claiming fear of persecution for reasons of his political opinion. |
| Migration Act 1958 (Cth), s.474(2) |
| W396/ 2001 v Minister for Immigration & Multicultural Affairs (2000) 68 ALD 69 Al-Amidi v Minister for Immigration & Multicultural Affairs [2000] FCA 1801 NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 412 |
| Applicant: | SZMAG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 524 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 May 2008 |
| Date of Last Submission: | 6 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| The Applicant: | Appeared in person |
| Appearance for the Respondents: | Ms Johnson |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 524 of 2008
| SZMAG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant is a citizen of Bangladesh. He has brought an application asking the Court to set aside a decision of the Refugee Review Tribunal that affirmed the decision of a delegate of the Minister not to grant him a protection (Class XA) visa. He also asks the Court for a writ of mandamus compelling the Tribunal to
re-determine his application according to law.
The applicant claims that there are three reasons why the Tribunal fell into jurisdictional error. First; because it acted in bad faith. Second; that it failed to consider reasonable relocation within Bangladesh on the basis of his political affiliation and third, that it acted in excess of its jurisdiction when it found that it was not satisfied that there was a real chance that he would be subjected to serious harm amounting to persecution for a Convention reason if he were to return to Bangladesh at the time of the hearing or in the foreseeable future.
In order to consider the applicant's claim it is necessary to look at the background. The applicant arrived in Australia on 1st August 2007.
On 12th September 2007 he applied for a protection (Class XA) visa on the basis that his life was in danger because of his involvement with the Jatiya Party in Bangladesh and he fears harm from an underground political party called the Purbo Bangla Sarbahara. He claims that the authorities in Bangladesh are not able to offer him protection from the activities of Purbo Bangla Sarbahara.
A delegate of the Minister refused his application for a protection visa on 23rd October 2007. On 12th November the applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal wrote to the applicant and invited him to attend a hearing.
The applicant attended the hearing. It took place on 3rd January 2008. He gave evidence in support of his claims with the assistance of an interpreter in the Bengali language.
The applicant had provided documentation to the Tribunal to assist his application. With his original application he provided documents from the Jatiya Party in Bangladesh concerning his membership of the party. He also made a submission to the Tribunal on 7th December 2007.
In that submission he referred to and relied upon his earlier submission that he had made to the Department of Immigration & Citizenship on
2nd October 2007.
In his submission to the Tribunal - a copy of which can be found at pages 50 and 51 of the Court Book - he set out in some detail why he feared that his life would be in danger if he were to return to Bangladesh. He referred to his fear of the Purbo Bangla Sarbahara which he said was an underground party who carried out crimes including extortion, killing and robbery. He feared that they would demand money from him because of his involvement with the Jatiya Party and that the government would not be able to give him effective protection to save his life.
The applicant also provided copies of newspaper articles from the Daily Star which related to incidents of violence by the party which he claims to fear. He has also provided a copy of his Bangladeshi passport.
The Tribunal signed its decision on 22nd January 2008 and handed that decision down on 12th February. A copy of the Tribunal decision record can be found in the Court Book at pages 67 through to 83.
The Tribunal affirmed the decision not to grant the applicant protection (Class XA) visa.
In the decision record the Tribunal referred to the applicant's claims and evidence as given in his protection visa application, including the written submission that the applicant made on 2nd October 2007 and his submission to the Tribunal of 7th December 2007. The Tribunal also set out the applicant's evidence at the hearing in some detail.
The Tribunal's findings and reasons can be found at pages 77 through to 83 of the Court Book.
The Tribunal accepted that the applicant was a citizen of Bangladesh and it had the applicant's Bangladesh passport to support that finding. The Tribunal noted the applicant's claim of a fear of persecution by the Purbo Bangla Sarbahara and considered the applicant's claim about that. The Tribunal accepted the applicant's claim that he had been a member of the Jatiya Party Ershad group since 2002 and had been on different working committees and had held the designation of Youth Affairs Secretary.
However, the Tribunal was not satisfied that the applicant had been involved in the activities of the party in other than a minor way.
The Tribunal did note that even low-level party workers did not receive effective state protection even if leaders of the parties did do so.
The Tribunal noted that the applicant's claims that the Purbo Bangla Sarbahara were very strong in the area where the applicant lives.
The Tribunal noted the applicant's claim that internal relocation to escape from persecution in the area is not an option in Bangladesh because it ignored the reality as people do not generally migrate around the country unless they get married or are sent for employment. As a result; outsiders would immediately be noted. The Tribunal however considered this claim but rejected it saying:
Having carefully explored this matter with the applicant during the hearing, the Tribunal has not been able to satisfy itself that if the applicant chose to live elsewhere in Bangladesh away from the Nasirpur area then there is a real chance that he would be subject to serious harm for a Convention related reason[1].
[1] See Court Book page 80
The Tribunal noted that the applicant had lived for some years in Dhaka, the capital of Bangladesh but whilst conceding it would be necessary for the applicant to start again and even re-establish a new business, the Tribunal was satisfied that there was not a Convention related reason why the applicant would not be able to do so or that the essential and significant reason for any difficulties that the applicant might experience would be Convention related.
The Tribunal specifically considered the applicant's claim that internal relocation was not an option in Bangladesh because it ignores the reality but noted the applicant had provided no compelling evidence or arguments to support that claim.
The Tribunal considered the applicant's claims and circumstances as it said, individually and cumulatively, but was not satisfied that there was a real chance that the applicant would be subjected to serious harm amounting to persecution for a convention reason if he were to return to Bangladesh. Accordingly, the Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant sought judicial review of that decision by filing an application and an affidavit in support on 4th March 2008. He filed an amended application on 14th April. He has filed in a written outline of submissions which he said he faxed to the Court but appeared not to have reached the Court file. He filed that outline of submissions in Court and I note that Ms Johnson, who appears for the Minister, had already received a copy of the outline of submissions.
The applicant relied largely on his written submissions but in reply he challenged the Tribunal's finding that relocation within Bangladesh is possible and told the Court that the Purbo Bangla Sarbahara is very strong and that they would find him and attack him in other parts of Bangladesh.
The applicant's three grounds are; first, that the Tribunal acted in bad faith in making the comment:
The Tribunal finds that the applicant has embellished his claims in order to enhance his claim for a protection visa and is not a credible witness.
Second; the applicant claims that the Tribunal failed to consider the reasonable relocation on the basis of his political affiliation with the Jatiya Party and harm by the Purbo Bangla Sarbahara by failing to consider reasonable relocation and making the finding:
If for any reason the applicant is concerned about returning to his home village, then it would be reasonable for him to go and live elsewhere in Bangladesh in safety and without there being any likelihood of his being tracked down and harmed by the Purbo Bangla Sarbahara or his political opponents.
The applicant also claims, as his third ground, that the Tribunal acted in excess of its jurisdiction by finding:
The Tribunal is not satisfied that there is a real chance that the applicant could be subjected to serious harm amounting to persecution for a Convention reason if he were to return to Bangladesh either now or in the foreseeable future.
In his submissions the applicant claims that the Tribunal had acted in bad faith because he was a popular and influential leader in the local area of the Jatiya Party and he had lodged letters from the party proving his membership and had lodged newspaper documents before the Tribunal showing that the Purbo Bangla Sarbahara were very strong and were involved in killing and criminal activities.
The applicant claims that the Tribunal did not give any weight to those documents and did not realise his persecution because of his adherence to the Jatiya Party. He submits that the Tribunal's failure to address this issue prevented it from having a rational basis to determine his chance of persecution in the future and resulted in the Tribunal not considering an essential substantial matter to his claims. He referred the Court to the decision in W396/2001 v Minister for Immigration & Multicultural Affairs.[2]
[2] (2000) 68 ALD 69 at [33]
The applicant also claims as his second ground that the Tribunal failed to consider the reasonable relocation on the basis of his political affiliation within Bangladesh and reiterated his claim that internal relocation is not an option in Bangladesh. He said it ignores the reality of Bangladesh because people in Bangladesh do not generally migrate around the country except on marriage or when sent to different places for employment. The presence of an outsider would immediately create notice. He went on to say:
Furthermore; I cannot reasonably be expected to suppress the exercise of my inalienable human rights in order to avoid being subjected to persecutory treatment.
The applicant also drew the Court's attention to some comments made by one Ms F Volk, noting her conclusion that international - it should be internal relocation - is not an option in Bangladesh.
These statements were apparently made in a meeting on 2nd April 1993. That does not appear to be evidence that was submitted to the Refugee Review Tribunal and the Court cannot consider it.
The applicant also referred to the decision of Lee J in Al-Amidi v Minister for Immigration & Multicultural Affairs[3] where his Honour is quoted as saying:
If the expectation of relocation is to be regarded as reasonable there must be satisfaction of the basic norms of civil, political and socio-economic human rights in that direction.
The applicant submitted that internal relocation was not possible for him and would not resolve his problems. He submitted that the Tribunal made a wrong assumption.
[3] [2000] FCA 1801
The applicant's third ground claims that the Tribunal acted in excess of its jurisdiction when finding that it was not satisfied there was a real chance that he would be subjected to serious harm amounting to persecution for a Convention reason if he were to return to Bangladesh.
The applicant referred to the newspaper article that he had submitted and claimed the Tribunal did not listen to him and did not look at the newspaper reports to authenticate his claims. He asked; perhaps rhetorically, how the Tribunal had given him confirmation that he would not be persecuted for political opinion in the reasonable foreseeable future? As such, he submitted that the Tribunal had acted in excess of its jurisdiction by making those comments.
In dealing with those claims; first of all the claim of bad faith is a serious claim. I am referred by Ms Johnson for the Minister to the decision of Giles J in NAKF v Minister for Immigration &Multicultural & Indigenous Affairs[4] where his Honour held at paragraph 24 that it must be shown:
That the Tribunal Member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him - tossing a coin without reading the file, allowing in every third applicant or allowing in applicants from various countries in rotation might be examples.
[4] (2003) 199 ALR 412
It is submitted that there is no evidence of any allegation of impropriety against the Tribunal member can be made.
The applicant claims that the Tribunal acted in bad faith by ignoring the documents which he submitted. The fact is that the Tribunal did accept the documents from the Jatiya Party asserting his membership and accepted at page 78 of the Court Book that he had been a member of that party and had been on different working committees and held various positions within the party. What the Tribunal did, however, was go on to consider what role the applicant had taken and was not satisfied on considering that evidence that the applicant had other than a minor role.
The evidence of bad faith that the applicant would need to prove is just not there. In my view the first ground fails.
The applicant has claimed that the Tribunal failed to consider reasonable relocation. He reiterates the assertions that he made at the hearing as to why relocation is not an option in Bangladesh.
The applicant's submissions do no more, with respect, than reassert the factual claims that the applicant made to the Tribunal. Those claims were considered by the Tribunal at page 80 of the Court Book, but while assessing that evidence the Tribunal came to the conclusion that it would be possible to relocate within Bangladesh.
The applicant's third claim is a claim the Tribunal acting in excess of its jurisdiction by reaching a state of non-satisfaction that there was a real chance the applicant would be subjected to serious harm amounting to persecution for a Convention reason if he were to return to Bangladesh at the time of the hearing or in the foreseeable future. That statement by the Tribunal is no more than a statement made as a result of a consideration of the applicant's evidence. It is a conclusion arrived from consideration of factual material. The evidence before the Tribunal was, to my mind, such that the Tribunal could, on that evidence, reach the conclusion that it did. That conclusion comes from the Tribunal's consideration of the evidence and I am of the view that the conclusion was open to the Tribunal on the evidence before it.
The fact is that the Tribunal did consider the applicant's evidence but was not satisfied on considering that evidence as a whole, that the applicant had established that there was a real chance that for the reasons given the applicant would be subject to persecution.
I am aware that the applicant is not legally represented. My reading of the Tribunal decision does not disclose any other basis for finding that there is jurisdictional error. I am satisfied no jurisdictional error has been made out and accordingly the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act.
As such the application will be dismissed.
There is an application for costs on behalf of the first respondent Minister. The applicant has been wholly unsuccessful in his claim, and in my view, this is an appropriate matter for costs. The amount sought of $3,500.00 is within the scale envisaged by the Federal Magistrates Court Rules and I propose to order the applicant is to pay the first respondent's costs fixed in the sum of $3,500.00.
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: 7 May 2008
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