SZNSL v Minister for Immigration

[2009] FMCA 996

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNSL v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 996

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – procedural fairness not denied – merits review not available in judicial review proceedings.

Migration Act 1958, ss.36, 422B, 424AA, 424A, 425, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZNSL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1567 of 2009

Judgment of: Cameron FM

Hearing date: 23 September 2009

Date of Last Submission: 23 September 2009

Delivered at: Sydney

Delivered on: 23 September 2009

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr J.A.C Potts

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1567 of 2009

SZNSL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Bangladesh where, he claims, he was targeted by members of opposition political groups because of his membership of the Bangladesh Awami League. He also claimed that after leaving Bangladesh for Singapore he was physically assaulted and “mentally tortured” by his wife and her sons from a previous marriage.

2. The applicant claims to fear persecution in Bangladesh because of his political activities. He claims to fear persecution in Singapore on the basis of his membership of a particular social group, namely, “victim of domestic violence in Singapore who are victims in the context where the state provides such persons no effective protection”.

3. After his arrival in Australia on 21 October 2008, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 13 February 2009. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

4. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

5. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 5-14 of the Tribunal’s decision (Court Book (“CB”) pages 123-132).

2. The applicant attached to his protection visa application a statement in which he set out allegations concerning his fear of returning to Bangladesh or Singapore. In relation to Bangladesh, the applicant recounted his membership of the Chatra League and the Awami League and his participation in political activities generally in Bangladesh between 1993 and 2005.  In that statement he also said that he left Bangladesh for Singapore in 2005 where he married a Singaporean citizen who had a number of children from a previous marriage.  He said that he was ill-treated by them and that this compelled him to leave Singapore. 

3. When applying to the Tribunal for review of the delegate’s decision, the applicant said in a letter dated 7 April 2009 that he feared returning to Bangladesh because of his involvement in politics, notwithstanding the fact that his party, the Awami League, was in power at that time.  He said that he believed that he would be arrested by the police as there was a case pending against him.  He also said that he feared returning to Singapore because of serious conflict involving his wife and her son from a previous relationship. 

4. In his evidence before the Tribunal, the applicant reiterated his claim to fear persecution in Bangladesh by reason of his political activities and made particular reference to the secretary of the Bangladeshi National Party in his home town, whom he said he feared would kill him.  He said that were he to return to Bangladesh he would always be living in fear of this person and that person’s brothers.   

5. As to his life in Singapore, the applicant said that his wife’s second oldest son had assaulted him and that his wife had also caused him mental suffering.  He said that he was once attacked by one of his wife’s sons in the café that they owned and that he suffered a second attack at home.  He said that he was mistreated by his wife’s family because he had been sending money to his sick father in Bangladesh.  The applicant also said that he was afraid of living elsewhere in Singapore because it was such a small country and, in effect, he could not live there without interacting in some way with his wife and her family.  He also said that he was unable to generate any useful police interest in the assaults which he claimed to have suffered because he did not have witnesses to support his allegations concerning those attacks.  He said to the Tribunal that he did not believe that the Singaporean authorities could give him adequate protection were he to return there. 

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).

2. The Tribunal’s decision turned on the application of s.36 of the Act to the applicant’s claim for a protection visa and, in particular, subss.(3), (4), and (5). Those subsections provide:

   Protection obligations

   (3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

   (4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.

   (5) Also, if the non-citizen has a well-founded fear that:

   (a) a country will return the non-citizen to another country; and

   (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;

   subsection (3) does not apply in relation to the first-mentioned country.

3. The Tribunal observed that the applicant’s passport indicated that he had a right of residence in Singapore and that at the time of the Tribunal’s hearing such right of residence still existed. As a consequence, the Tribunal found that the applicant had not taken all possible steps to avail himself of a right to enter and reside in another country other than Australia, namely Singapore, as required by s.36(3) of the Act.

4. The Tribunal proceeded to identify considerations relevant to s.36(4) and (5). Finding that the applicant had a right of residence in Singapore, it went on to say that it also accepted, for the purposes of its decision, that the applicant faced a real chance of persecution in Bangladesh. Accordingly, the Tribunal had to consider whether the applicant had a well-founded fear of being persecuted for a Convention reason should he return to Singapore and whether, were he to return to Singapore, that country would refoule him to Bangladesh.

5. As to whether the applicant would suffer persecution or had a well-founded fear of persecution in Singapore, the Tribunal first considered whether the applicant had suffered serious harm and whether he was likely to suffer serious harm in the near future should he return to Singapore.  The Tribunal accepted the applicant’s evidence that he had been harassed by his wife and repeatedly assaulted by her son and it was prepared to accept for the sake of argument that such assaults amounted to serious harm.  However, the Tribunal found that the motivation of the applicant’s wife and sons was personal and not attributable to a Convention reason. 

6. Noting that a discriminatory failure by state authorities to provide protection from conduct by non-State actors might amount to persecution, the Tribunal considered the adequacy of state protection in Singapore. The Tribunal observed that independent country information suggested that Singapore has a very high rating for its legal system and very low levels of corruption.  The statistical information to which the Tribunal referred demonstrated to it that in 2003 Singapore had the highest rating in Asia for the quality of its legal system.  The Tribunal found that Singapore met international standards in terms of its justice system and in terms of corruption generally and offered a reasonable level of state protection, both generally and specifically, in relation to the applicant’s allegations of domestic violence.  The Tribunal further observed that there was no information before it which supported the applicant’s claim that Singapore would withhold protection from him for a Convention reason and it thus found that such protection would not be withheld from him should he return to that country.

7. The Tribunal concluded that as the applicant had not made any claims to fear persecution in Singapore by reason of being a member of some other particular social group or for any other reason, it was not satisfied that he had a well-founded fear of persecution in Singapore for reasons of race, religion, nationality, membership of a particular social group or political opinion either at that time or in the reasonably foreseeable future. Consequently, the Tribunal concluded that s.36(4) did not prevent the operation of s.36(3) to the applicant’s circumstances.

8. The Tribunal further found there was no independent country information before it which would suggest that the applicant would be returned to Bangladesh while he remained a permanent resident of Singapore. Further, the Tribunal observed that there was no information or evidence before it suggesting that the applicant was at risk of losing his permanent residency at that time or in the foreseeable future. As a consequence, the Tribunal was not satisfied that the applicant had a well-founded fear that Singapore would return him to Bangladesh and it concluded that s.36(5) did not prevent the operation of s.36(3) in the context of the applicant’s claim.

9. By reason of these findings, the Tribunal concluded that the operation of s.36(3) had the consequence that Australia did not have protection obligations towards the applicant.

Proceedings in this Court

1. The grounds of the application commencing these proceedings were pleaded as follows:

   1.The Tribunal denied procedural fairness at the time of the   assessment of applicant [sic] claim.

   2.The Refugee Review Tribunal’s decision was unjust and was made without taking into account the full gravity of the applicant’s circumstances of the decision.

Denial of procedural fairness

1. This allegation was not particularised.

2. At the outset it should be noted that apart from the bias rule, common law procedural fairness does not apply to proceedings before the Tribunal. Section 422B(1) of the Act states that the provisions of div.4 of pt.7 of the Act codify the natural justice hearing rule for the purposes of the Tribunal’s review. It can also be conveniently noted here that the applicant made no allegation of bias against the Tribunal.

3. Turning to the procedural fairness requirements placed on the Tribunal by the provisions of div.4 of pt.7, it is trite to observe that the most significant of these are ss.424A and 425. As to s.424A, the Tribunal’s decision record discloses that the Tribunal notified the applicant of various matters using the procedure provided by s.424AA and that the applicant submitted a written response a couple of weeks after the hearing. The matters which the Tribunal advised were not, strictly speaking, ones which required notification under s.424A. Nevertheless, the Tribunal took a cautious approach which cannot be criticised. In any event, the information on which the Tribunal relied in reaching its decision was information which the applicant himself provided and information of a general nature not specifically related to the applicant or another person. Such information does not need to be notified to an applicant: s.424A(3). For these reasons, I do not conclude that the Tribunal breached the requirements of s.424A.

4. As to s.425, the applicant was invited to a hearing before the Tribunal and he attended. Further, during the course of that hearing, the Tribunal alerted the applicant to issues arising in relation to the decision under review. Indeed, the matters expressed to be notified pursuant to s.424A generally fall into this category. The Tribunal notified other issues to the applicant as well. I am not satisfied that the Tribunal failed to meet its obligations under s.425.

5. As to the remaining provisions of the division, none has been identified by the applicant as having been breached and it is not apparent that any have been, including s.422B(3).

Finding was unjust and did not take all matters into account

1. The second ground pleaded in the application is, in reality, no more than an invitation to the Court to substitute a decision more favourable to the applicant than the one reached by the Tribunal.  The Court is not empowered to do this.  Its role is to ensure that the Tribunal follows correct procedures and applies the law correctly when making its decision.  Decisions related to the merits of review applications are ones solely for the Tribunal.

2. It is apparent that the Tribunal considered the evidence and arguments presented to it by the applicant. That, having considered those matters, the Tribunal reached a conclusion with which the applicant disagrees, does not amount to jurisdictional error.  Even if a differently constituted Tribunal might have reached different conclusions on the facts, that would not amount to jurisdictional error.  Having considered the matters raised by the applicant, the Tribunal reached findings and conclusions which were open to it on the evidence.  Given those circumstances, no basis for setting aside the Tribunal’s decision by reason of the matters alleged in the second ground of the application has been demonstrated. 

Conclusion

1. As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date:  8 October 2009