SZMLT v Minister for Immigration - [2009] FMCA 134

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMLT v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 134

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.417, 422B, 424A, 425

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

Applicant:

SZMLT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1670 of 2008

Judgment of:

Barnes FM

Hearing date:

17 February 2009

Delivered at:

Sydney

Delivered on:

17 February 2009

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application is dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1670 of 2008

SZMLT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal signed on 14 May 2008 and handed down on 3 June 2008.
The applicant, a citizen of Bangladesh, arrived in Australia in November 2007 and applied for a protection visa. The application was refused and he sought review by the Tribunal. He attended a Tribunal hearing.
In his application for a protection visa, and as elaborated on in the Tribunal hearing, the applicant claimed to fear persecution on the basis of his involvement in activities and support for the Awami League in Bangladesh. He claimed in essence that as a student he had been an active member of the Awami League and that during that time he had been persecuted by members of the student wings of other parties, (the BNP, Jamaat Islam, Chatra Dal and the Islamic Tatra Chebir) and assaulted and injured on one occasion.
The applicant claimed that he had lived and been employed in Dhaka since 2003. He claimed that he and his brother both attended an Awami League gathering in 2004. He claimed that his brother had been arrested, detained and tortured by the police and had disclosed to them that the applicant was at the gathering. The applicant claimed to be fearful of being arrested by the authorities.
The applicant confirmed to the Tribunal that he had had no contact with the police at any time before leaving Bangladesh. He also explained that from 2002 he had been an Awami League supporter rather than a member and had not been active. Although he had gone to some meetings for a time, he had stopped attending meetings some three months before coming to Australia because he was insecure. He claimed that he paid a bribe to the police department in order to obtain a passport.
In its reasons for decision the Tribunal recorded that at the hearing it discussed with the applicant information that might lead it to find that he was not a refugee, that it gave him the opportunity to respond orally or in writing and that he chose to respond to each point immediately.
The Tribunal set out six points of concern it had raised with the applicant about his evidence, his responses in relation to each of those issues and the fact that it gave him an opportunity to add any further evidence. It also referred to the fact that he had asked it to consider his claims on humanitarian grounds.
After setting out country information in relation to the situation in Bangladesh the Tribunal found that, with the exceptions it discussed, the applicant gave his evidence in a “generally frank and truthful manner.” It accepted that he was an active member of the Awami League while at college until 2001. Having regard to country information to the effect that Bangladeshi student politics were known for their violence, it found it not implausible that the applicant was assaulted by students who were members or supporters of the BNP, which was the ruling party at the time. The Tribunal accepted that while at university the applicant was assaulted for reason of his political opinion.
The Tribunal accepted (as consistent with information from Amnesty International about the situation in Bangladesh in 2004 and as to the detention of thousands of opposition activists) that in 2004 the applicant’s brother was detained after attending a gathering of supporters of the Awami League in Dhaka, ill-treated, detained and released some 12 days later.
The Tribunal also accepted the applicant's evidence that he had not been a member of the Awami League since leaving college in 2002, but that he considered himself to have continued to be a supporter of the party.
For reasons which it gave, which reflected issues discussed at the Tribunal hearing, the Tribunal did not consider that the applicant faced a real chance of serious harm in the reasonably foreseeable future for the Convention reason of political opinion.
First, the Tribunal observed that the applicant’s problems with supporters of other political parties had all occurred in a named place in Bangladesh and that by living in Dhaka since 2003 he had had no further contact or problems with them, despite continuing to attend meetings of the Awami League on a regular basis.
Secondly, while the applicant claimed he primarily feared being arrested by the police for reasons associated with the information his brother gave them in 2004 that he was present at a meeting of the Awami League, the Tribunal found that the chance the applicant would be harmed by the police either because of his presence at that meeting or because of his continued support for the Awami League was remote. It had regard to the fact that his only reason for thinking the police had any interest in him was that his brother told him he had given his name to the police. It observed that the brother would not have known whether this was in fact of real interest to the police, either then or subsequently. The Tribunal also found that as the Awami League was and remained a legal political party it would be surprising if the applicant’s mere presence as a supporter at a party meeting “would result in any sustained interest in him by the police”.
The Tribunal considered the applicant's claim that the police made inquiries of his family in his hometown before the state of emergency was declared in January 2007. It was not satisfied that this had occurred. It had regard to the fact that when asked at the hearing if anything particular had happened to make him think his arrest was imminent the applicant had made no reference to this claim. The Tribunal found that this would have been an obvious point for the applicant to mention this claim. It found that his claim that strangers, who he speculated were police, had made such inquiries was made belatedly. The Tribunal was not satisfied that the police were making such inquiries. The Tribunal also had regard to the fact that the applicant had not claimed that the police had made any inquiries since that time. It found that this pointed to a lack of interest in his whereabouts by the police. It also had regard to the fact that the applicant had worked at a single workplace in Dhaka for over four years without any apparent police interest in locating him. It found his suggestion that his employer kept his employment a “secret” from the police to be speculation and was of the view that one would have expected the applicant’s employer to have informed him if the police had made inquiries about him. It also had regard to the fact that the applicant claimed he was able to attend regular meetings of the Awami League in Dhaka between 2003 and 2007 and have contact with members of the party without any police harassment of those attending. The Tribunal accepted the applicant lived at various addresses in Dhaka, but as it was satisfied the police had no interest in his whereabouts it did not consider he would be sought out or have problems if he lived at a single address.
The Tribunal found that the applicant’s willingness to provide the passport office with his sister's address in Dhaka in 2007 was not consistent with his claim to fear that the police were actively looking for him. Rather this was said to show a confidence that this would not lead to his sister coming under suspicion by the police because of her contact with the applicant.
While the Tribunal accepted that “tens of thousands” of people were arrested in the weeks following the declaration of a state of emergency in January 2007, it inferred that the police had no interest in the applicant's whereabouts “even during this period of focused crackdown”, given that he continued to go to work until he left Bangladesh in November 2007 without any official inquiries being made about him there, or of his family members (or anyone else) and having regard to the fact that he was issued with a valid Bangladeshi passport and was able to leave the country legally and openly. The Tribunal was satisfied that the applicant’s passport would not have been refused because of his political opinion (even if he had not paid a bribe as claimed).
Next, the Tribunal found that evidence from what it described as “other sources above” (which is clearly a reference to the country information cited) did not indicate that ordinary supporters of the Awami League were at risk of being arrested because of their political opinion and indicated that limitations on political activity applied equally to supporters and members of all political groups and parties. It referred to 2007 evidence that political gatherings of less than 50 people in Dhaka were now allowed and was satisfied that the applicant could continue to participate in the level of political activity in which he was involved before his departure from Bangladesh.
The Tribunal also considered the applicant's expressed concern about his safety if the Awami League did not win elections due to be held later in 2008. It acknowledged that the likely outcome of that election was unknown, but had regard to the fact that the applicant had not been subjected to any serious harm or limitation on his right of freedom of expression because of his political opinion in the years after leaving university, prior to the introduction of emergency rule, despite the Awami League being in opposition. It found the chance that he would face persecution for reason of his political opinion under similar circumstances in the future to be remote.
The Tribunal concluded for these reasons that the applicant did not have a well-founded fear of being persecuted in Bangladesh for the Convention reason of political opinion. It noted that he did not claim to fear persecution for any other reason. It also noted that the applicant had asked it to consider his circumstances on humanitarian grounds, but stated that, as it explained at the hearing, that was outside the Tribunal's jurisdiction.
The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. It found that he did not satisfy the criterion for a protection visa. It affirmed the decision of the delegate of the first respondent.
The applicant sought review by application filed on 30 June 2008. There is one ground in the application. It contends that the Tribunal breached its obligations under s.424A(1) of the Migration Act 1958 (Cth) in failing “to discuss” with the applicant or give him an opportunity to provide an explanation in relation to the findings that it made to reject his claims. It was submitted that the Tribunal was under an obligation to put such information to the applicant for comment as information it considered would be the reason or part of the reason for affirming the decision under review.
In the particulars the application refers to the fact that the Tribunal relied on material referred to in the delegate's decision and a DFAT report which was not discussed with him or given to him. It was contended that the “withholding” of the full contents of such information deprived the applicant of knowledge of the particulars of the information and the opportunity to understand such material.
The short answer to the claims made by the application in relation to independent country information is that such information is within the exception in s.424A(3)(a) as information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572). There was no obligation to put particulars of such information to the applicant under s.424A(1). Similarly, there was no obligation to put particulars of the source of that information to the applicant pursuant to s.424A(1) or indeed to notify him of the source of such information.
To the extent that the applicant contends that the Tribunal was obliged to give him an opportunity to comment on its findings under s.424A(1) of the Act, the Tribunal is not obliged to put its preliminary reasoning to the applicant. As is clear from SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 (at [18]) and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, the Tribunal's views and determinations do not constitute information for the purposes of s.424A(1).
The particulars to this ground also refer to the High Court decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 and the fact that the High Court cited with approval the reference by the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590 – 591 to the fundamental principle that “where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That that would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.”
Insofar as this is a general assertion of a lack of procedural fairness, I note the operation of s.422B of the Act. The evidence before the court is not such as to establish a failure to comply with s.425 of the Act, whether in relation to the need to make the applicant aware of dispositive issues in the sense considered in SZBEL or otherwise. Rather, it is apparent from the Tribunal reasons for decision which include a lengthy account of what occurred in the Tribunal hearing (and that is the only evidence before the Court of what occurred in that hearing), that the Tribunal raised with the applicant issues of significance to its findings, including matters such as the fact that the evidence did not indicate that ordinary supporters of the Awami League were at risk of being arrested because of their political opinion.
In addition, the delegate had found that there was no evidence to indicate that the applicant would face persecution if he continued his membership of the Awami League upon return to Bangladesh, thus alerting the applicant to the fact that this was a dispositive issue.
The applicant has not identified any particular issues that were not brought to his attention or indeed the manner in which he claims that he was denied procedural fairness. This claim is not made out.
In submissions today the applicant contended that the Tribunal should consider humanitarian grounds in light of the problems he had experienced in his home country and his claim that he had been tortured, that his leg had been disabled and that he could not get a job there. However, as the Tribunal recognised, the issues that the applicant raises in relation to humanitarian grounds are matters that are outside the Tribunal's jurisdiction. The Tribunal’s obligation was to consider whether it was satisfied that the applicant met the criteria for a protection visa. The criteria for a protection visa do not include the consideration of humanitarian grounds. The Tribunal had no power to grant the applicant a protection visa or, indeed, some other sort of visa, on humanitarian grounds in the context of his application for a protection visa.
The solicitor for the first respondent drew the applicant's attention to the fact that if he wished to raise humanitarian considerations, those issues may be a matter for the Minister in a determination as to whether the Minister would exercise his discretion to substitute a more favourable decision for the decision of the Tribunal under s.417 of the Act.
The Tribunal did not err in its consideration of the applicant's claims on “humanitarian” grounds. No jurisdictional error has been established on any of the bases contended for by the applicant. Hence, the application should be dismissed.
The applicant has been unsuccessful. The first respondent seeks that he meets the costs of the Minister of these proceedings in the sum of $4,000. The applicant raised the fact that he had no job and asked how he could pay that amount. However the applicant's lack of employment or funds is not a reason in the circumstances of this case for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. I consider that the amount sought is appropriate in light of the nature of this and other similar matters and having regard to the provisions of the Federal Magistrates Court Rules.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 3 March 2009