SZNKU v Minister for Immigration
[2009] FMCA 791
•27 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNKU v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 791 |
| MIGRATION – Visa – Protection (Class XA) visa – application for review of Refugee Review Tribunal decision – citizen of Bangladesh claiming fear of persecution on the basis of religion and political opinion – whether the Tribunal failed to take relevant considerations into account – whether the applicant was denied procedural fairness – whether the Tribunal failed to investigate the applicant’s claims – whether the Tribunal failed to comply with the requirements of Migration Act 1958 (Cth) s.424A – credibility issues – letter of acknowledgment sent by Tribunal not sent under the provisions of Migration Act 1958 (Cth) s.424(2) – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.91R, 414, 415, 420, 424, 424AA, 424A, 424B, 474, 476 Migration Regulations 1994 (Cth) reg. 4.35 |
| NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 SZNAV v Minister for Immigration & Anor [2009] FMCA 693 not followed. Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32 followed. SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 followed. SZNJT v Minister for Immigration & Anor [2009] FMCA 730 followed. SZNPH v Minister for Immigration & Anor [2009] FMCA 788 referred to. |
| Applicant: | SZNKU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 830 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 August 2009 |
| Date of Last Submission: | 5 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2009 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Ms Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs in the sum of $6000.00 and I allow 6 months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 830 of 2009
| SZNKU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application by a citizen of Bangladesh for review of a decision of the Refugee Review Tribunal dated 10th March 2009. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the applicant a Protection (Class XA) visa.
The applicant seeks the following orders:
(1)An order or declaration that the notification by the delegate and the Tribunal to refuse to grant the protection visa invalid and has no effect to section 44c[1] the Judiciary Act 1903 (Cth).
[1] sic
(2)A writ of certiorari quashing the decision of the Refugee Review Tribunal.
(3)An order that no action is taken to remove the applicant from Australia while the decision is pending.
The first point to be made is that the Court does not have the jurisdiction to make an order or declaration about the notification by the delegate. The delegate’s decision is a primary decision and the Court does not have jurisdiction to deal with it (Migration Act, s 476). The Court will deal with the application for review of the decision of the Tribunal.
The applicant relies on five grounds of review alleging jurisdictional error on the part of the Tribunal. He claims that:
(1)The Tribunal failed to take certain relevant considerations or integers into account.
(2)The Tribunal failed to carry out its review function and to exercise its jurisdiction.
(3)The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied the applicant procedural fairness in that it failed to investigate the Tribunal’s genuine claims.
(4)The Tribunal “did not use the country information as specific” but contravened s.424A of the Migration Act by not giving that information to the applicant before the hearing.
(5)The Tribunal failed to consider an integer of the applicant’s claim, whether a liberal Christian in Bangladesh was at risk of harm from radical Muslims.
Background
The applicant arrived in Australia on 17th July 2008. He applied for a Protection (Class XA) visa on 28th August 2008. The application was accompanied by a statement signed by the applicant claiming to be a member of the Catholic faith and to have been interested in politics. He claimed to be a member of the BNP and to have suffered harm at the hands of members of the Awami League. He claimed that attempts were made to kill him and that a false case was filed against him. The applicant applied for a visa to visit Australia for the World Youth Day celebrations in Sydney. The applicant provided a number of press cuttings and items downloaded from the Internet in support of his claim for a visa.
On 22nd September 2008 the Department of Immigration and Citizenship invited the applicant to attend an interview with an officer of the Department. The applicant’s migration agent provided a written submission to the Department in support of the applicant’s claim, together with two character references. The applicant attended the interview on 30th October 2008.
A delegate of the Minister refused the application for a protection visa on 4th November 2008. The delegate stated:
At interview I found the applicant’s responses to be vague and evasive. In his application and at interview the applicant has attempted to portray himself as a political activist for the BNP, and due to his political profile, and because he is a Christian, he is now being persecuted by his enemies which include representative(s) of the main political parties in Bangladesh. However, I am not satisfied that the applicant has substantiated a claim of well founded fear of persecution because of his political opinion or his religion, or for any other Convention reason for the following reasons:[2]
[2] See Court Book at 126
The delegate found the applicant had been “vague and evasive” in explaining who wished to harm him, or why. The delegate was not satisfied that the applicant held a significant political profile. Again, the delegate accepted that the applicant is a Catholic but was not satisfied that his religion was the essential and significant reason for the harm that he claimed to fear.
The delegate went on to find:
I have formed the view that the applicant fears harm or prosecution for a private matter. It appears that the applicant’s shop has been attacked and closed, once only. This was in 2005 by ‘Nripen and his gang’ (folio 27). Nripen is the Hindu boy who, the applicant claims, had a relationship with the wife of the applicant’s brother. The applicant and his brother had previously ‘protested’ against the relationship, and had visited the parents of his brother’s wife. The applicant confirmed that he is still facing charges in the Bangladeshi courts in relation to this matter.
The applicant has verified sufficient details in his written testimony, and at interview to lead me to believe that the essential and significant reason for the harm feared by the applicant relates directly to events surrounding the discovery that his brother’s wife was having an affair with a Hindu boy called Nripen. While the applicant’s responses regarding this matter have been vague and evasive, I am satisfied that these events are motivated by a private matter, and not related to a Convention reason.[3]
[3] Court Book at 127
Application for Review by the Refugee Review Tribunal
After his application for a protection visa was refused, the applicant applied to the Refugee Review Tribunal on 1st December 2008 for review of the delegate’s decision. The applicant did not provide any documentary evidence to the Tribunal with his application.
The Tribunal wrote to the applicant on 2nd December 2008, acknowledging his application. The letter stated, under the heading “What does the Tribunal expect me to do?”:
· Immediately send us any documents, information or other evidence you want the Tribunal to consider. Any documents not in English should be translated by a qualified translator.[4]
[4] A copy of the Tribunal’s letter was not included in the Court book but was tendered in evidence during the hearing
On 8th January 2008 the Tribunal wrote again to the applicant, advising him that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone, and inviting him to attend a hearing on 17th February 2009.
The applicant advised the Tribunal 13th January 2009 that he had appointed Ms Ting Lim of the Refugee Advice + Casework Service to represent him and he wished her to accompany him to the hearing.
On 11th February 2009 Ms Lim forwarded a 22 page statutory declaration by the applicant to the Tribunal.[5]
[5] Court Book 140-161
The applicant attended the hearing on 17th February 2009, accompanied by Ms Lim. He gave evidence with assistance of an interpreter in the Bengali language. He produced his passport to the Tribunal and submitted a number of testimonials and documents downloaded from the Internet in support of his case.
The hearing was adjourned part-heard to 4th March 2009. The applicant again attended with Ms Lim. He gave further evidence with the assistance of a Bengali interpreter.
The Refugee Review Tribunal Decision
The Tribunal made its decision on 10th March 2009, affirming the decision of the delegate not to grant the applicant a protection visa.
The Tribunal accepted that the applicant was a national of Bangladesh but did not accept the balance of his claims:
129.Beyond this issue, however, the Tribunal finds that it does not believe the evidence presented by the applicant going to his past experiences in Bangladesh, the activities which he engaged in while there, nor the fears he has of returning to that country. In the Tribunal’s view, the applicant has fabricated claims of past experiences and activities only for the purpose of supporting this application, and without regard to the truth of the matters claimed.
130.In the Tribunal’s view, the claims of past harms which he has experienced arising from the cultural, social, political and religious activities in which he claims to have been involved in cannot be believed because of the nature of the evidence which he has presented to support them and the inconsistencies and contradictions identified in the evidence he has given over time.
131.In the Tribunal’s view, the documentary evidence from Bangladesh used to support this claim has been fabricated for the purpose of supporting the applicant’s assertions.[6]
[6] Court Book 255
The Tribunal accepted that the applicant was a member of the Catholic faith and that he had participated in activities associated with various Catholic groups over time. However, it did not believe that this had ever put the applicant “in harm’s way”[7] in the past or that there was a real chance that this would occur on the applicant’s return to Bangladesh. The Tribunal found:
In the Tribunal’s view, there is no reliable evidence that the applicant has ever suffered any harm arising from his practice of the Catholic faith in Bangladesh in the past. While he may have been involved with various Catholic social welfare groups, there is nothing in the country material which indicates that this alone would give rise to harm.[8]
[7] Court book 258 at [146]
[8] Ibid at [148]
The Tribunal did not accept that the applicant’s claimed association with the BNP was genuine and did not accept that the applicant had presented a credible account of his past political affiliations or commitment. The Tribunal did not believe that the applicant had ever been harmed on that basis or that he would be harmed for that reason if he were to return to Bangladesh.
In rejecting the applicant’s claims to fear harm on credibility grounds, the Tribunal stated:
In the Tribunal’s view, while the applicant may well have a reason why he does not wish to return to Bangladesh, this does not arise from his Catholic faith, political opinion or any other Convention ground. One could expect that were he genuinely the subject of such fears he could present truthful and reliable evidence of these matters.[9]
[9] Court Book 259 at [155]
The Tribunal did not believe that the applicant held a well-founded fear of being persecuted for any reason should he return to Bangladesh and was therefore not a person to whom Australia has protection obligations. Nor was he the spouse or dependant of such a person. Accordingly, the Tribunal found that the applicant could not satisfy essential prescribed criteria for any Class XA visa and must therefore be refused the grant of such a visa under s.65 of the Migration Act.[10]
[10] See Court Book 260 at [157]
Application for Judicial Review
The applicant filed an application and affidavit in support to commence these proceedings on 8th April 2009. He filed a written outline of submissions on 9th June 2009.
The Minister filed an outline of submissions on 15th June 2009.
The applicant addressed the Court in an oral submission that largely reiterated his refugee claims. He did, however, tell the Court that a letter of reference that appears at page 173 of the Court Book did not apply to him, and pointed out that the names in the document were different from his own and from those of his parents. I am satisfied that this document should be disregarded, as the applicant submitted, although nothing turns on that point.
The applicant’s written submissions made these claims:
i)The Tribunal failed to take into account the applicant’s fear of persecution because of his active role in politics, social work and Christian activities.
ii)The Tribunal failed to consider an integer of the applicant’s claim, whether a Christian minority involved in politics and social activities was at risk of harm from radical Muslims and opposition parties and not able to access effective protection.
iii)The Tribunal denied the applicant procedural fairness by failing to bring to his attention adverse information in breach of s.426A and s.426AA of the Migration Act.[11]
iv)The Tribunal failed to note that the applicant satisfied the definition of “Refugee’ as defined in Article 1A(2) of the Refugees Convention.
[11]The applicant’s submission also referred to sections 91R(2), 414, 415 and 420 of the Migration Act.
Counsel for the Minister, Ms Clegg, submitted that the Tribunal decision was not the subject of jurisdictional error. She dealt with the applicant’s grounds of review as follows:
i)Ground 1 is just a bare allegation that the Tribunal failed to take into consideration certain integers of the applicant’s claim.
ii)Ground 2. There were two integers, a fear of persecution at the hands of the Awami League due to his political involvement with the BNP, and a fear of harm on account of his Christian beliefs and practices. The Tribunal addressed both of those integers but disbelieved the applicant’s material factual claims. It did accept that he was a Christian with genuine Christian beliefs but disbelieved his claim to fear harm by reason of his practice of Christianity in Bangladesh.
iii)Ground 3 is an allegation of a failure to investigate the applicant’s genuine claim. Ms Clegg submitted:
If there is a duty on the part of the Tribunal to investigate aspects of the applicant’s claims, such a duty is extremely limited and will only arise in the rarest of cases…Nothing in the material before the Court gives rise to an issue concerning a duty to enquire.[12]
iv)Ground 4 is an assertion that the Tribunal did not give the applicant before the hearing information about Bangladesh but this claim is not sustainable in the light of s.424A(3)(a).
v)Ground 5 claimed that the Tribunal failed to consider an integer of the applicant’s claim, that he would suffer persecution as a liberal Christian in Bangladesh. This claim was not articulated and did not arise on the material (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2)[13] at [58]).
[12] First Respondent’s Outline of Submissions at [27]-[28]
[13] (2004) 144 FCR 1; [2004] FCAFC 263
It was further submitted on behalf of the Minister that the Tribunal had sought to comply with the requirements of s.424AA of the Migration Act:
The applicant was asked for his comments on information which may be a reason for affirming the decision under review.[14]
[14] Court Book 242 at [77]
Again, Ms Clegg drew the Court’s attention to the recent decision of SZNAV v Minister for Immigration and Citizenship[15] on the question of whether Tribunal’s letter of acknowledgment breached the requirements of s.424B of the Act and submitted that it should not be followed.
[15] [2009] FMCA 693
Conclusions
The applicant relies on five grounds of review.
Grounds 1 and 2 should be read together. They state:
1. That the decision of the Refugee Review Tribunal was affected by jurisdictional error in that the Tribunal did not take into account certain relevant considerations or integers central to the applicant’s claims.
2. The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
Particular of Grounds
a)The tribunal did not consider the applicant who had been under immense and intimidating pressure from opposition party and Muslim radicals for being a member of BNP and Christian activist.
b)In relation to above the Tribunal did not consider the applicant’s claim that Awami League members in his village have threatened him and his family members in the past and continued to harass applicant’s family members even after he has left Bangladesh.
c)The applicant has given adequate evidence to the Tribunal that he was a leader of BNP in his area and an active Christian activist.
d)Therefore the applicant submits that the Tribunal failed to analyse properly future harm the applicant may face if he returns to Bangladesh. Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claim.
The particulars of the ground(s) suggest that the applicant is attempting to re-argue his factual claims. This, of course, would constitute inadmissible merits review.
The Tribunal did, in my view, address both integers of the applicant’s claim:
a)A fear of persecution by the Awami League for reason of his political involvement with the BNP; and
b)A fear of persecution on account of his religious belief as a Christian activist.
The Tribunal considered those matters thoroughly. The hearing was conducted on two different days. The Tribunal’s hearing records show that on 17th February 2009 the hearing lasted for 2 hours and 2 minutes, from 11:47 am to 1:47 pm[16], and on 4th March 2009 the hearing lasted for 2 hours and 18 minutes, from 9:06 am to 11:24 am.[17]
[16] Court Book 163
[17] Court Book 207
The Tribunal Decision Record sets out the applicant’s claims and evidence, from page 215 to page 248 of the Court Book.
In my view the Tribunal considered both of the integers of the applicant’s claim in a thorough manner. The applicant’s Grounds 1 and 2 have not been made out.
Ground 3 states:
The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied applicant procedural fairness in that the Tribunal failed to investigate applicant’s genuine claims with the requirement of Migration Act.
There is no general obligation on the Tribunal to conduct its own independent investigation of the applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[18] per Gleeson CJ at [17]-[19], per Gummow and Hayne JJ at [33] and [43]; SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs[19] per Bennett J at [8]).
[18] (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32
[19] [2005] FCA 1811
The applicant’s Ground 3 has not been made out.
Ground 4 states:
The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against applicant claims in the final outcome. The Tribunal did not give to the applicant before the hearing the information it had about Bangladesh. The Tribunal used the all[20] information for matter of reasoning and evaluation of applicant case for protection visa. This was against section 424A of the Migration Act 1958.
[20] sic
There is no breach of s.424A of the Migration Act. True it is that the Tribunal referred to independent country information[21] about Bangladesh in its decision but this information is specifically excluded from the operation of s.424A (1) by s.424A (3) (a).
[21] Court Book 248-255
Ground 4 has not been made out.
The applicant’s Ground 5 says:
The Tribunal failed to consider an integer of applicant’s claim, in failing to consider whether or not a liberal Christian (regardless of the specific claims of affiliation of past persecution) in Bangladesh was at risk of harm from radical Muslims, and not able to access effective protection.
There are three reasons why this ground cannot succeed.
First, the applicant did not articulate this claim in the material he submitted or at the interview with the delegate or at the Tribunal hearing.
Second, the ground is raised not as referring to the applicant specifically but virtually in the abstract. The Tribunal is not required to consider hypothetical claims. It is required to review specific claims. Subsection 414(1) of the Migration Act states:
Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.
Third, the Tribunal did consider the situation of Christians in Bangladesh, and Catholics in particular:
The Tribunal does not believe that the general treatment of those of the Catholic faith in Bangladesh rises to the level of harm which could be considered persecutory. While there is no doubt apprehension within religious minorities, the available evidence regarding Catholics indicates that most are able to practice their faith freely and that the Church is an important institution in the provision of education and health care services in the country. In this context, and considering the applicant’s background and past experiences as found by the Tribunal, the Tribunal does not believe that there is a real chance of his coming to harm sufficient to be considered persecution should he now return to Bangladesh. There are substantial reports of harm to some Christians in Bangladesh, but in the Tribunal’s view a real chance of harm does not arise for followers of the Catholic faith in the ordinary expression of their faith.[22]
[22] Court Book 259 at [154]
Ground 5 has not been made out.
Whilst all the applicant’s grounds of review have failed, the Court should still consider whether there exists an arguable case for jurisdictional error. The Court should consider those relevant sections that are found in Division 4 of Part 7 of the Migration Act.
There is no breach of s.424A of the Migration Act. The Tribunal appears to have sought to comply with the requirements of s.424AA of the Act at paragraph [77] of the Decision Record. In any event, there was no information that formed the reason, or part of the reason, for affirming the decision under review that was not covered by one or other paragraphs of s.424A (3) of the Act.
This was a decision that rested on the wide-ranging findings about the credibility of the applicant. The Tribunal considered the applicant’s evidence, both written and oral, and found it wanting in credibility. The Tribunal also considered the independent country information.
There is no breach of s.424A of the Act.
The Tribunal wrote to the applicant and invited him to attend a hearing, as required by s 425 once it had decided that it was unable to make a decision in his favour based on the material before it. The letter of invitation, dated 8 January 2009, invited the applicant to appear before the Tribunal on 17th February 2009. The period of notice given clearly exceeded the prescribed period. The letter of invitation advised the applicant of the time, date and place of the hearing and contained a statement of the effect of section 426A.
The letter of invitation complied with the requirements of s.425A of the Act.
The applicant attended the Tribunal hearing, accompanied by his migration agent, Ms Lim, who is also a solicitor. He asked for, and received, the services of a Bengali interpreter. There has been no complaint made that the standard of interpreting was inadequate.
There could hardly be a complaint that the applicant was not given a proper opportunity to present his case. The hearing took place over two hearing days. The adjourned date was originally set for 25th February 2009[23], but was postponed at the request of the applicant’s adviser, Ms Lim, because she was not able to attend on that date.[24] The delegate at the interview was critical of the applicant’s credibility, and the applicant’s credibility was the reason why the Tribunal did not grant his application.
[23] Court Book 197
[24] Court Book 199, 202-203
No breach of s.425 of the Migration Act appears.
Counsel for the Minister has referred to the recent decision of Raphael FM in SZNAV[25] and submitted that the Court should not follow it.
[25] supra
In SZNAV, Raphael FM found that the Refugee Review Tribunal, in sending out an acknowledgement letter identical to the one that was sent in the matter under review before this court, had committed jurisdictional error because it had breached Migration Regulation 4.35 and s.424B(2) of the Migration Act. His Honour held that the letter acknowledging receipt of the application for review, sent by the Tribunal a day after receiving the application, was an invitation under s 42492) of the Act for the applicant to give additional information (SZNAV at [32]).
For the reasons that I gave in SZNPH v Minister for Immigration & Anor[26] at [41]-[42], I am not satisfied that SZNAV has been correctly decided and, with respect, I decline to follow it. In my view, also with respect, the decision of Smith FM in SZNJT v Minister for Immigration & Anor[27], where his Honour also declined to follow SZNAV, is a correct summary of the law and I propose to follow that decision.
[26] [2009] FMCA 788
[27] [2009] FMCA 730
I am satisfied that the Tribunal did not fall into jurisdictional error by means of any non-compliance with ss.424 or 424B or Regulation 4.35.
No jurisdictional error appears in the Tribunal decision under review. It is therefore a privative clause decision as defined by s.474(2). Privative clause decisions are final and conclusive and not subject to prohibition, mandamus, injunction, declaration or certiorari.
It follows that the application will be dismissed with costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 27 August 2009
This would appear to be a clerical error and the applicant means s 424A and s 424AA of the
Act.
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