SZNHJ v Minister for Immigration
[2009] FMCA 1250
•18 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNHJ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1250 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZNHJ”. |
| Migration Act 1958 (Cth), ss.91X, 424A, 425 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 |
| Applicant: | SZNHJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 489 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 13 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2009 |
REPRESENTATION
| Solicitors for the Applicant: | The applicant appeared in person with the assistance of a Bengali interpreter |
| Counsel for the Respondents: | Ms B Anniwell (Solicitor) |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 3 March 2009 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 489 of 2009
| SZNHJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a citizen of Bangladesh who claims political persecution in his home country due to his membership of the Bangladesh National Party (BNP). The applicant states that he was the leader of the student wing of the BNP while at college. Some years after graduation in 1995, he joined the BNP proper and was active in the national election campaign of a BNP candidate in his electorate in 1996. He says he was targeted by the Awami League who won those elections. He states he led protests against the Awami League and that in 1998, businessmen joined his branch which caused hostility against him.
The applicant claims that in 2000 his business was attacked by the Awami League and he was unable to report this to the police. His home was raided and in 2001 police came to his house and told him “not to proceed further”. A group called the Rapid Action Battalion also went to his home and told his wife there were two cases against him.
The applicant arrived in Australia on 11 July 2008 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 25 July 2008. A delegate of the first respondent refused to grant the visa on 16 October 2008 and the applicant was notified of the decision and review rights by letter of the same date. The applicant applied to the Refugee Review Tribunal (“the Tribunal”) on 12 November 2008 for review of the delegate’s decision. On 4 February 2009, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa (reference number 0807692). On 3 March 2009, the applicant applied to the Federal Magistrates Court for review of the Tribunal decision.
At the first Court date directions hearing the applicant indicated that he wished to participate in the NSW RRT legal advice scheme and he was subsequently allocated a panel advisor. The applicant attended a conference with his advisor and received written advice. At the first court date directions the applicant was also granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 5 June 2009. The applicant availed himself of this opportunity and filed an amended application on that date.
The grounds set out in the amended application were as follows:
1. The RRT failed to take into account relevant considerations.
Particulars
The Tribunal based its decision and adverse credibility findings on the Applicant’s responses to questions about why the RAB visiting his house on 3 occasions in 2008. The Tribunal failed to take into account the applicant’s claim that a reason why the RAB visited his house in 2008 was that he had been involved in demonstrations against the caretaker government.
2. That the RRT did not give proper, genuine and realistic consideration to the applicant’s case.
Particulars
The applicant repeats the particulars to ground 1.
3. The Tribunal committed jurisdictional error by not giving the first applicant notice of its intention not to give any weight to the document submitted by the Applicant, the Tribunal failed to provide a letter in accordance with the requirements of section 425 of the Migration Act.
a. The applicants rely on and repeat particulars to ground 1.
4. The Tribunal committed jurisdictional error in finding no Convention nexus to the applicants’ claims collectively in circumstances where the Tribunal did not act judicially in reviewing the claims of the applicant.
a. The applicants rely on and repeat the grounds to particular 1.
b. The applicant was a district leader not a leader for a few villages.
c. The Tribunal failed to take prevailing situation into which was against the Applicant.
d. The Tribunal failed to determine the applicant’s accordance with the provisions of the Convention.
The Tribunal decision
The applicant’s migration agent attended the Tribunal hearing of 14 January 2009. The Tribunal member asked why the applicant did not seek protection in India and Thailand when he visited those countries for a few days in 2008. He replied that he had a travel companion and did not have time to do so. The member also asked why he did not seek protection in the United States when he was there for nine months in 2002 to 2003. The applicant replied that he stayed with friends and did not work.
The Tribunal found that the applicant demonstrated sufficient knowledge of politics to satisfy it that he had some knowledge of, and involvement in, election campaigns (CB 111 at [34]). However it did not accept other aspects of the applicant’s claim as credible. The Tribunal did not accept that the police spent 18 months looking for the applicant from 2000 to 2001 but was unable to find him, given his business interests and local prominence; nor did it accept that there had been a sudden interest in him in 2008 (CB 111 at [35]). While it accepted that the applicant’s poultry farm was attacked once in 2000, it noted that the applicant re-established the farm in 2003 and that it was still functioning (CB 112 at [39]).
In light of these findings the Tribunal did not accept that there was a real chance of the applicant suffering harm amounting to persecution if he returned to Bangladesh for reason of his political opinion and that his claimed fear of Convention-related persecution in Bangladesh was not well founded (CB 112 at [41]-[42]).
Consideration
Ground one
In written submissions filed by the applicant, he indicated that he claimed before the Tribunal that a special branch of the police force called the Rapid Action Battalion (RAB) attempted several times to arrest him in early 2008 because of his political identity as a BNP leader. He stated that his political opponents, the Awami League, instigated the RAB to arrest him with the help of his brother who was employed by the RAB. The applicant also indicated that in January 2007, the caretaker government backed by the military took control of the country and declared a state of emergency. The caretaker government started arresting and harassing BNP activists and leaders across the country. Thousands of leaders of various levels were arrested by the RAB and the army under to false charges.
The applicant further submits that the RAB attempted three times to arrest him in 2008, acting as biased law enforcement for the caretaker government. Even the BNP chairman and ex-Prime Minister and her two sons who were arrested. The applicant claims that because of his very strong political influence in his area, the local Awami League leader and his brother instigated his arrest by the RAB. The Tribunal did not believe in the RAB’s sudden interest in him which arose from his political influence.
The applicant claims that the Tribunal made contradictory comments regarding this issue and pointed to para.31 of the decision where it commented that there was political activity during the state emergency in 2008 but it was not possible to hold political rallies at this time. The applicant claims that the Tribunal did not give any information as to what extent those political activities were allowed. Further para.35 contains a statement that there was very limited political activity after the declaration of state emergency which would not give rise to an enlivened interest by the RAB in the applicant.
Before the Tribunal was the applicant’s statement including his reference to the RAB visiting his residence: CB 99 at [25]-[26]. There is nothing in those two paragraphs to indicate that this took place in 2008 and that there was a sudden resurgence of interest in the applicant by the RAB. In oral evidence to the Tribunal on 14 January 2009, the applicant referred to the police visiting his home three times in 2008, being March, April and May. The Tribunal records this information under the sub-heading “Oral evidence”.
In the “Findings and Reasons” at para.35 the Tribunal notes:
35…moreover, the sudden interest in 2008, under the caretaker government, was also not satisfactorily explained. The applicant stated that it arose from his political influence in two or three villages in his area. However, there was very limited political activity in Bangladesh after the declaration of the state emergency (12 January 2007) and the postponement of the elections (eventually held in December 2008). That the RAB would go to his home three times in early 2008 merely to ask why he had made short visits to other counties is not credible. Such questions would have nothing to do with his claimed influence in two or three villages. (CB 111)
The Tribunal rejected those claims on the basis that the applicant was not a credible witness and this ground does not give rise to jurisdictional error.
Ground two
This ground relies on the particulars pleaded in ground one and in effect is the same claim couched in a different form. I agree with the written submissions of Ms Anniwell, solicitor for the respondents, that the Tribunal’s reasons for decision disclosed that it gave thorough and due consideration to the applicant’s claims including those relating to the RAB. The applicant made particular reference to the circumstances of the visits by the RAB in 2008. The substantial part of his written submissions focus on this issue. I am satisfied that the Tribunal addressed this in its decision, particularly to the fact that Bangladesh was under emergency rule and political meetings had been prevented from occurring. The claims made by the applicant, with particular reference to the visits of the RAB, were not accepted by the Tribunal because it did not accept that the applicant was a credible witness. I am satisfied that this ground does not disclose jurisdictional error.
Ground three
The provision of the Migration Act 1958 (Cth) (“the Act”) pleaded in this ground is either due to a mistake or misunderstanding. Section 425 requires the Tribunal to invite the applicant to appear to “give evidence and present argument relating to the issue arising in relation to the decision under review”. The Tribunal on 22 November 2008 issued such a notice inviting the applicant to attend the Tribunal hearing on 14 January 2009 at 9.30am at the Tribunal’s offices in Clarence Street, Sydney. The applicant failed to respond to the invitation within the specified time; however a follow up call from the Tribunal office confirmed that the applicant and his agent intended to attend the hearing. The hearing took place at the nominated time and lasted for approximately two hours.
The applicant appears to be attempting to raise an issue under s.424A of the Act. However, this raises a further misunderstanding as the Tribunal’s reasons disclose that it relied solely on information the applicant provided in support of his application in affirming the decision under review. Pursuant to s.424A(3)(b), the Tribunal is not required to put that information to the applicant under s.424A(1). In the particulars, oral and written submissions, there has been no attempt to identify “the document” referred to in this ground of review.
The Tribunal is not required to put to the applicant information he gave for the purposes of the application under review: s.424A(3)(b) of the Act. In respect of the documents that the applicant provided, the Tribunal is entitled to give whatever weight to that evidentiary material that it decides: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6. In respect of any adverse view taken by the Tribunal to the applicant’s evidence, inconsistencies in the evidence and claims, its doubts about evidence and even the absence of evidence are not “information” for the purposes of s.424A: SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [14]-[18].
This appears to be a misunderstanding of the provisions of the Act by the applicant or the person providing assistance to him. The particulars relied upon from ground one are of no assistance in clarifying the issue that the applicant may be attempting to ventilate in this ground. In the circumstances the pleadings, or the main inference that can be drawn from those pleadings, do not raise a jurisdictional error on the part of the Tribunal.
Ground four
The applicant claims in this ground that the Tribunal failed to identify the Convention nexus to his claim. The particular to ground one which is also listed under this ground has been dealt with above. The applicant stating that he was a district leader does not establish that the Tribunal failed to recognise a Convention nexus.
In respect of Particular C, the Tribunal member clearly referred to the prevailing political situation particularly the declaring of emergency rule. This curtailed a great deal of political activity, including rallies. The Tribunal noted that when the most recent election took place in Bangladesh the applicant was not present as he was already in Australia, consequently avoiding any disturbances due to that election. This ground does not identify any jurisdictional error and should be dismissed.
Conclusion
The applicant in these proceedings was a self-represented litigant who appeared with the assistance of a Bengali interpreter. The applicant participated in the Court sponsored legal advice scheme, filed an amended application and prepared written submissions. Although four grounds of review with particulars have been filed, they all focus on his claim that the RAB visited his premises on three separate occasions in 2008. I am satisfied that the issues identified in the application have been satisfactorily addressed by Ms Anniwell in her written and oral submissions. On a fair reading of the decision, it is not apparent that any other ground of review exists which would suggest that the Tribunal made a jurisdictional error in its decision-making process. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter and that the applicant pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 18 December 2009
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