SZMSZ v Minister for Immigration

[2009] FMCA 475

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSZ v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 475

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

Migration Act 1958 (Cth), ss.65, 422B, 424A, 425, 425A

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195
SZKLZ v Minister for Immigration & Citizenship [2008] FCA 262
SZLHR v Minister for Immigration & Citizenship [2008] FCA 1160
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

Applicant: SZMSZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2385 of 2008

Judgment of: Barnes FM

Hearing date: 11 May 2009

Delivered at: Sydney

Delivered on: 11 May 2009

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. That the application be dismissed. 

2. That the applicant pay the costs of the first respondent fixed in the sum of $3,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2385 of 2008

SZMSZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal signed on 29 July 2008 and handed down on 19 August 2008 affirming a decision of the delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant, a citizen of Bangladesh, arrived in Australia in December 2007 and applied for a protection visa in January 2008.  His claims were set out in a statement accompanying his protection visa application.  The application was refused and the applicant sought review by the Tribunal.  The Tribunal relevantly wrote to the applicant by letter dated 8 May 2008 and advised him that it had considered the material before it, but was unable to make a favourable decision on that information alone.  It invited him to attend a hearing on 6 June 2008 at a time and place specified.  The Tribunal received a completed response to hearing invitation form dated 26 May 2008 in which in response to the question, "Do you want to come to a hearing?", the box marked "NO, I/we do not want to come to a hearing.  I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it" was ticked.  That response to hearing invitation was accompanied by a letter from the applicant which referred to the response and confirmed that the applicant would not come to the hearing and elaborated on the basis for the applicant's claims to fear persecution.  The applicant asked the Tribunal to make a decision without his oral evidence, to take into account documents submitted to the Department and his submission and advised that he could not provide any supporting documents to the Tribunal in relation to his involvement with the BNP. 

3. In its reasons for decision the Tribunal stated that it received this letter from the applicant in relation to the hearing scheduled for 6 June 2008 on 26 May 2008 and that it had therefore proceeded to make a decision on the basis of the material already before it.  The Tribunal set out in some detail the claims the applicant made in connection with his protection visa application and also the claims made in the written statement submitted to the Tribunal.  In its findings and reasons it summarised his claim to fear persecution at the hands of a leader of the Awami League as the result of a dispute over a piece of land which began in 1988, which he claimed became a political dispute when he starting working as a field worker for the BNP in 2002.  The applicant had also claimed that in 2004 he visited his local member of parliament and that this transformed the dispute into a political one and that he was assaulted again.  He claimed that after the caretaker government took control in January 2007 the Army had arrested and beaten him as a terrorist of the BNP government.  He claimed that he had relocated, but been attacked and feared his life was not safe.  He claimed that he would not get any effective protection from the government.

4. The Tribunal found, in essence, that the applicant's claims were unclear and lacking in detail and that it was unable to reach the requisite state of satisfaction that he was a refugee.  It elaborated on the areas in which his claims lacked detail or were otherwise unsatisfactory, finding, for example, that the applicant's claims raised numerous questions, but that “unfortunately” the applicant had requested that the Tribunal make a decision without obtaining oral evidence from him.  Hence the questions remained unanswered.  The Tribunal found it unclear how the land dispute could have continued since 1988 without any resolution, given that the applicant claimed that the person who wanted his land was a famous leader of the Awami League and the police and courts listened to the government of the day.  It was also said to be unclear on the applicant's claims how the Awami League leader and his people were able to continue to attack the applicant and threaten to kill him during the period after 2001 when the BNP was in power in Bangladesh (as the delegate's decision had explained). 

5. The Tribunal also found that, apart from a general claim, the applicant had provided no detail as to his claimed involvement with the BNP or his claimed political activity and that while he claimed he had worked as a seaman and tried to jump ship in other countries, he had provided no detail of the countries or his efforts in that respect, although these matters were obviously relevant to whether he genuinely feared persecution.  Nor had the applicant provided detail (beyond a bare outline of his claims) about his claimed arrest by the Army, the circumstances in which he escaped being “fired on” and his subsequent release.  The Tribunal found these matters and the basis on which the Army would have arrested him as a “terrorist of the BNP government” to be unclear. 

6. The Tribunal indicated that all these matters could have been discussed at the hearing, but that the applicant had declined that opportunity.  The Tribunal found it was unable to be satisfied on the evidence before it that the applicant had spent the years since 1988 in hiding because of a land dispute with a famous leader of the Awami League, as he claimed, or that he started working for the BNP as a field worker in 2002.  Nor was it able to be satisfied on the evidence before it that the applicant was arrested by the Army as a terrorist of the BNP government, fired on and fortunate to be saved.  The Tribunal concluded that it was unable to be satisfied on the evidence before it that if the applicant returned to Bangladesh now or in the reasonably foreseeable future there was a real chance he would be involved in any form of political activity or would be persecuted, whether by the Awami League leader and his people, the Awami League more generally, the caretaker government or the Army for reasons of real or imputed political opinion or for any other Convention reason.  It was unable to be satisfied on the evidence before it that he had a well-founded fear of persecution for a Convention reason.

7. The applicant sought review of the Tribunal decision by application filed in this Court on 15 September 2008.  He filed an amended application on 19 February 2009 and also written submissions.  The first respondent's submissions addressed the grounds raised in both the application and the amended application. 

8. I note first that, as the first respondent submitted, the applicant was invited pursuant to ss.425 and 425A of the Migration Act 1958 (Cth) to attend a Tribunal hearing. No issue was raised by the applicant as to the procedural requirements in relation to a hearing invitation. The applicant can be taken to have received this letter, in that he provided a response. No failure to comply with any of the procedural requirements of the Act is apparent on the material before the Court. In particular, the hearing invitation properly informed the applicant that the Tribunal was unable to make a favourable decision on the material before it. The response to hearing invitation form indicated that the applicant consented to the Tribunal proceeding to make a decision without taking any further action to allow or enable him to appear before it. Hence, the obligation under s.425(1) did not apply by virtue of s.425(2)(b), which provides that sub-s.(1) does not apply if the applicant consents to the Tribunal deciding the review without the applicant appearing before it. Thus, under s.425(3) the applicant was not entitled to appear before the Tribunal.

9. I note that for the first time in concluding oral submissions the applicant suggested to the Court that he did not go to the Tribunal hearing because he was sick on the particular day of the hearing. This is not a matter that was raised in the application, the amended application or the written submissions. It is contrary to the response to hearing invitation and the letter to the Tribunal which the Tribunal recorded that it received on 26 May 2008 in relation to the hearing scheduled for 6 June 2008 in which the applicant indicated that he did not want to come to an oral hearing. The evidence before the Court is not such as to establish any failure by the Tribunal to comply with its obligations in relation to a hearing invitation under the Migration Act.

10. It is convenient to consider first the grounds in the amended application as they are the grounds addressed by the applicant in written submissions.  The first ground in the amended application is that the Tribunal “failed to exercise its duty under the Migration Act and that the Tribunal did not put any weight to [his] political involvement with the BNP and subsequently being persecuted.”  In submissions the applicant reiterated these claims, suggesting that the Tribunal did not put any weight on the possibility that he had been persecuted and it did not take into consideration that there was a chance he would be persecuted.  He reiterated his claims to fear persecution. 

11. Insofar as this is a contention that the Tribunal failed to have regard to the applicant's claims, it is contrary to the material before the Court.  In its reasons for decision the Tribunal set out the claims of the applicant in his protection visa application and also in the written statement to the Tribunal.  That was the only information the Tribunal had before it in that respect.  In its findings and reasons it considered those claims, but found, based on the absence of detail, that it was unable to be satisfied that the applicant started working for the BNP as a field worker in 2002 and hence that the harm he claimed to fear flowing from that was made out.  The Tribunal also understood and considered the applicant's claims insofar as they related to the Awami League, but again was unable to be satisfied that the past events he claimed had occurred had in fact occurred or that there was a real chance that the applicant would be persecuted whether by the Awami League leader and his people, the Awami League more generally, the caretaker government or the Army for any Convention reason, including actual or imputed political opinion. 

12. The applicant failed because on the limited material before it the Tribunal was not able to reach the requisite state of satisfaction in relation to the criteria for the class of visa for which he applied. As it was not so satisfied, under s.65 of the Act, it refused to grant the visa. Questions of the weight to be given to particular aspects of an applicant's claims do not arise for consideration in the manner contended for by the applicant in these circumstances. Its findings were open to it on the material before it for the reasons which it gave. It was for the Tribunal to determine whether it was satisfied as to the applicant's political claims. Insofar as in this ground, and in oral submissions today, the applicant sought to reiterate his claims to fear persecution, he seeks merits review, which is not available in this Court.

13. The second ground in the amended application is that the Tribunal failed to comply with s.424A of the Act. It is claimed that the Tribunal should have written to the applicant putting to him the issues which it found in its reasons for decision to be unclear or the questions that were unanswered. However, no breach of s.424A is established. Section 424A does not require the Tribunal to advise an applicant that it may have difficulty in accepting his claims or to put its preliminary reasoning or unresolved issues to him for comment. As the High Court stated in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]:

    … if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information".

14. More pertinently, I note that in SZBYR Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ followed the reasoning of the Full Court of the Federal Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24], noting that information does not encompass the Tribunal's “subjective appraisals, thought processes or determinations”, or extend to “identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc”. 

15. No failure to comply with s.424A is established. I note more generally that it is for an applicant to satisfy the Tribunal of his eligibility for the grant of a protection visa. As Gummow and Hayne JJ stated in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187]:

    It is for the applicant to advance whatever evidence or argument [he] wishes to advance in support of her contention that [he] has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

16. The Tribunal was not obliged to write to the applicant under s.424A (see SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 and also post-SZBYR see SZLHR v Minister for Immigration & Citizenship [2008] FCA 1160 and SZKLZ v Minister for Immigration & Citizenship [2008] FCA 262).

17. The last ground in the amended application is that the Tribunal acted in excess of its jurisdiction by making the comment that “if the applicant returns to Bangladesh now or in the reasonably foreseeable future, there is a real chance that he will be involved in any form of political activity or that he will be persecuted for reasons of his real or imputed political opinion or for any other Convention reason” (sic).

18. In submissions the applicant contended that the Tribunal had acted in excess of its jurisdiction by giving him a guarantee that he would not have any real chance of persecution, that it failed to consider the reality of the situation and hence failed to have a rational basis to determine the chance of persecution in the future.  However, as the applicant recognised in written submissions, albeit not in the amended application, the critical aspect of this finding was that the Tribunal found that it was “unable to be satisfied on the evidence” before it.  It did not simply make a finding that if the applicant returned to Bangladesh he would not be involved or that there was no real chance that he would be involved or persecuted.  Rather, it found that it was unable to be so satisfied on the evidence before it.  As set out above, such a finding was a conclusion open to the Tribunal on the material before it.  No jurisdictional error is established in the manner contended for by the applicant. 

19. As the first respondent addressed the grounds in the original application, I will consider them. They are generally expressed and not particularised and there is some overlap with the amended application. The first ground is a broad claim that the Tribunal failed to accord procedural fairness or natural justice. The applicant reiterated this contention in oral submissions. This ground is not made out. It has not been established that the Tribunal failed in any way to comply with its obligations under Div.4 of Pt.7 of the Act (see s.422B and Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214). In particular, as the applicant elected not to attend a hearing, the Tribunal was statutorily entitled to make the decision without taking further steps to allow him to appear and give evidence. The obligation under s.424A did not arise on the material before the Court. In that respect I note that insofar as the Tribunal had regard to material in the protection visa application, such material would be within the exception to s.424A in sub-s.(3) as would independent information.

20. The second ground was that the Tribunal failed to give weight to relevant facts and/or documents.  The contention about weight is referred to above.  The Tribunal considered the integers of the applicant's claims.  It is apparent that it had regard both to the applicant's statement accompanying his protection visa application and also to the written statement it received with the response to hearing invitation form.

21. The third ground that the Tribunal “relied on irrelevant materials and/or questioned with unnecessary matters” bears no relationship to the circumstances of this case as the applicant did not attend the Tribunal hearing.  It has not been established that the Tribunal had regard to irrelevant matters or irrelevant considerations.  It made relatively straightforward findings as to a lack of an ability to be satisfied of the applicant's claims given the lack of detail and the brevity of the claims. 

22. The fourth ground is that the Tribunal failed to exercise jurisdiction and acted in excess of its jurisdiction.  This is not made out.  The Tribunal carried out its task to conduct the review on the material before it and, as discussed above, it has not been established that it acted in excess of its jurisdiction. 

23. As indicated in oral submissions, the applicant raised issues about his circumstances in Bangladesh.  However those claims do not establish jurisdictional error on the part of the Tribunal on the material before it at the time of its decision.  The applicant's contentions that he did not have a work permit in Australia and that his human rights were not upheld are not matters that are relevant to the issue of whether the Tribunal made a jurisdictional error.  As no jurisdictional error has been established the application must be dismissed. 

24. The applicant has been unsuccessful and the Minister seeks costs in the sum of $3,500.  The applicant told the Court that he had no work permit and no money, even for day-to-day expenses.  However the applicant's lack of 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 first respondent in determining when and how to seek to recover such costs.  The amount sought is appropriate in light of the nature of this and other similar matters. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  20 May 2009