SZNPI v Minister for Immigration - [2009] FMCA 1038

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNPI v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1038

MIGRATION – Review of RRT decision – applicant a citizen of Bangladesh – where grounds for review not particularised.

Migration Act 1958, s.422B

Applicant:

SZNPI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1183 of 2009

Judgment of:

Raphael FM

Hearing date:

8 October 2009

Date of Last Submission:

8 October 2009

Delivered at:

Sydney

Delivered on:

8 October 2009

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr P Reynolds

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1183 of 2009

SZNPI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh. He arrived in Australia on 20 October 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 22 October 2008. A delegate of the Minister refused to grant a protection visa on 19 January 2009 and on 20 February 2009 the applicant applied for review of that decision to the Refugee Review Tribunal. The Tribunal invited the applicant to a hearing which he attended. On 15 April 2009 the Tribunal determined to affirm the decision under review and handed that decision down on the same day.
The convention ground upon which the applicant claimed he was a person to whom Australian owed protection obligations was that of political opinion. In a statement made with his PVA [CB 28-29] the applicant told that in 1993 a former BNP ward commissioner sent one of his men to take a donation of TK 30,000.00 from him. He was warned that if he failed to pay the amount to the ward commissioner he would have to close his business or face the consequences.
The applicant says that he was very scared of this threat and in order to counter it he joined the Awami League. He became heavily involved in Awami League politics and the Awami League leaders in his area were very happy with his work. He says that he was promoted to the post of Assistant General Secretary of a ward in the Dhaka City Corporation. He worked hard for the Awami League from 1993 to October 2006, and says that his name was blacklisted by the BNP as an Awami League terrorist.
The applicant told that in October 2006, at the end of a five year period of rule by the BNP, the Awami League called for fair elections through an impartial caretaker government. He took part in the demonstrations and as a result the BNP put his name on a hit list for the RAB (Rapid Action Battalion). He said that the RAB tried to come and arrest him between 2006 and 2007 but he went into hiding. He went into India, to West Bengal, and from West Bengal he travelled to New Delhi and he arranged for a position in Papua New Guinea where he arrived in 2008. He remained in PNG until he came to Australia. The applicant claimed that he was too scared to go back to Bangladesh because his name was on the hit list of the RAB and that the RAB had killed a couple of his friends involved with the Awami League. The applicant produced a letter from the secretary of a branch of the Awami League addressed “To Whom it May Concern” [CB 95] in corroboration of his claims.
The Tribunal, in its short grounds and reasons for decision
[CB 112 to 115], noted that when the applicant came to the interview he was not initially able to tell the Tribunal the name of his electorate, or of his local member, or of the Awami League candidate. The Tribunal appears to have taken the applicant, on the Tribunal’s computer, to the website of the Bangladesh Electoral Commission and states at [CB 114]:
“[25] … It was possible, between the applicant and myself, to work out the answers to my questions. I commented to the applicant that it was hard to believe that he was very actively involved in politics when he had such a shaky knowledge of his electorate.
[26] With regard to the document he submitted from his party, I informed him that the Australian High Commission had been informed at a senior level that such letters were readily obtainable from the party to assist supporters to obtain residence overseas and that little weight could be put on them.”
The Tribunal’s findings and reasons are contained in five succinct paragraphs. It accepts that the applicant was a citizen of Bangladesh and that he was a supporter of the Awami League but concluded that his limited knowledge meant that he did not have the activist profile which he claimed. The Tribunal was not able to accept that a person with that profile was or would be targeted by BNP thugs or by the RAB even during times when the Awami League was not in power. The Tribunal did not accept that the applicant was on any black list or was being sought by the RAB for reasons of his political opinion.
The Tribunal accepted that it was possible that when the BNP was in power he was asked for a political donation but noted that he lived in an overwhelmingly Awami League area and did not accept that the demands threatened harm amounting to persecution. The Tribunal noted:
“[31]…In any event, his party is now in government and state protection would be available.”
The Tribunal concluded that it did not accept that there was a real chance that the applicant would suffer harm of any kind amounting to persecution for reasons of his political opinion or for any other convention reason should he return immediately to Bangladesh or in the reasonably foreseeable future.
On 15 May 2009 the applicant filed an application for review of the Tribunal’s decision in this court. There were three grounds of that application. The first was:
“The Tribunal failed to follow the procedural fairness and natural justice.”
No particulars of this ground are given even though the applicant was given an opportunity to file an amended application. In the absence of particulars it is not for this court to guess what the lack of procedural fairness may have been, but the court notes that whatever the applicant may have thought such lack existed of, it was subject to the provisions of s.422B of the Migration Act 1958 (the “Act”) which severely limits the extent of procedural fairness in matters of this nature.
The second ground of application was that:
“The Tribunal did not follow the procedures of Migration Act and Migration Regulations.”
Once again, there are no particulars of this allegation, and nothing the applicant has said to me today fell within that heading. Finally, the applicant claimed:
“The Tribunal’s decision involved in jurisdictional error and error of law.”
As Counsel for the Minister has rightly pointed out, this does no more than assert a conclusion. The nature of the alleged jurisdictional error has not been identified and I concur with his view that no error is apparent upon the material contained in the green book.
When the applicant appeared before me today he told me that he believed that the Tribunal had made an error. When I asked him what that error might be he said:
“I am from Bangladesh. I came to this country to seek asylum, but I did not get it from the Tribunal. I believe they have made a mistake.”
That does not indicate to me a jurisdictional error, merely a disagreement with the Tribunal’s fact finding which, if the court took it into consideration, would be to provide impermissible merits review.
The applicant also told me that he had suffered a lot in Bangladesh and he enjoyed his liberty here, he could move about freely and he would like to stay in Australia. He said that his family was suffering in Bangladesh and he wanted the Government to allow him to stay here and enjoy his own life with his family. These are perfectly natural wishes but they do not call into effect the judicial power of this court; that is limited to remitting the matter to the Tribunal if a jurisdictional error in the matter in which it reached its decision is found. This court cannot grant a visa, either to a refugee, or to a person who might have claims to remain here on compassionate grounds.
It will be clear from what I have said above that I am unable to accede to the applicant’s request for orders made in his application. I dismiss the application. I order that the applicant pay the first respondent’s costs assessed in the sum of $5,100.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 22 October 2009