SZQMC v Minister for Immigration
[2011] FMCA 844
•1 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQMC v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 844 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R, 422B, 424A, 425 |
| Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 291-2; NAHI v Minister for Immigration [2004] FCAFC 10 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 SZOHJ v Minister for Immigration [2010] FCA 1268 |
| Applicant: | SZQMC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1630 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 1 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 November 2011 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr I Temby Minter Ellison |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1630 of 2011
| SZQMC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 24 June 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and had made the claims of political persecution. The following statement of background information is derived from the Minister’s written submissions filed on 25 October 2011.
On 10 March 2006, the applicant arrived in Australia from Bangladesh[1].
[1] court book “CB” 3
On 1 March 2010, the applicant applied for a protection visa[2].
He claimed in that application that he is at risk of being harmed if he returns to Bangladesh because he was a witness to an attack by members of a terrorist group which is supported by the Bangladesh Chento League (BCL), who shot and killed one of the applicant's friends and wounded another. The applicant claimed to be a supporter of the Bangladesh National Party (BNP), which is now in opposition[3].
[2] CB 1
[3] CB 7-10
On 26 May 2010, the Department of Immigration and Citizenship sent the applicant an invitation to attend an interview with an officer of the Department[4], after receiving further information from the applicant in support of his application[5]. The applicant attended that interview.
[4] CB 54-61
[5] CB 38-53
On 11 June 2010, a delegate of the Minister refused the applicant's application for a protection visa[6]. The delegate found that:
While the applicant may fear criminal harm I find that the applicant's claimed fear is not for a Convention related reason ... I am not satisfied that the applicant ... is a person to whom Australia has protection obligations for the grant of a Protection (Class XA) visa[7].
[6] CB 67-72
[7] CB 71
Notice of the delegate's decision was sent to the applicant by letter dated 11 June 2010[8]. On 16 June 2010, the applicants lodged an application for review of the delegate's decision by the Tribunal[9]. That application was acknowledged by the Tribunal on 17 June 2010[10].
[8] CB 62
[9] CB 79
[10] CB 83
On 30 June 2010, in accordance with s.425(1) of the Migration Act 1958 (Cth) (“the Migration Act”), the Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in his case[11]. That invitation noted that:
The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone.
[11] CB 86
On 29 July 2010, the applicant appointed Mr Gordon Clarke of Playfair Visa & Migration Services as his representative[12].
[12] CB 89
On 3 August 2010, the applicant attended a hearing before the Tribunal[13]. He gave oral evidence and also provided written material to the Tribunal[14].
[13] CB 90
[14] CB 93-131
On 24 June 2011, the Tribunal decided to affirm the delegate's decision not to grant a protection visa to the applicant[15]. The Tribunal notified the applicant of that decision, through his representative, by letter dated 27 June 2011[16].
[15] CB 134
[16] CB 132
The Tribunal found that:
a)although it accepted the applicant's claims that he supports the BNP[17] and witnessed an attack on his friends[18], the Tribunal found that the applicant's own evidence was that the perpetrators were arrested for the attack and the case against them is ongoing[19];
b)while it accepted that the applicant fears serious harm from the perpetrators[20], the persecution feared was not Convention-related[21]. While the applicant claimed that the attack on his friends was politically motivated because the attackers were members of the Awami League[22], the Tribunal found that the attack was an act of “hooliganism” without political motivation[23]. The Tribunal found that any threats by the perpetrators towards the applicant arose because he witnessed the earlier attack and not because of the applicant's involvement in the BNP[24];
c)the applicant would not become politically active if he returned to Bangladesh and would not be at risk of harm on that basis given that he has no political profile there[25]; and
d)the Tribunal did not accept the applicant's claim that State protection would be denied to him for a Convention reason[26].
[17] CB 153, [91]
[18] CB 153, [92]
[19] CB 153, [93]
[20] CB 153, [95]-[96]
[21] CB 154, [99]
[22] CB 154, [98]
[23] CB 154, [99]
[24] CB 155, [103]
[25] CB 156, [106]
[26] CB 156, [107]
As a result, the Tribunal was not satisfied that the applicant will suffer harm on the basis claimed by the applicant in the reasonably foreseeable future, and therefore was not satisfied that the applicant has a well-founded fear of persecution if he returns to Bangladesh, because of his political opinion (or imputed political opinion), or for any other Convention reason[27].
[27] CB 156, [108]
In addition to the court book, which I received as evidence, I received as submissions two affidavits by the applicant filed on 29 July 2011 and 14 October 2011. The body of those affidavits repeats verbatim the grounds in the application filed on 29 July 2011:
1. The decision was made in breach of natural justice.
2. The Tribunal failed to consider crucial evidence constructively before it.
3. The decision involved a breach of s.425(1) of the Migration Act.
The applicant has not particularised the ways in which he alleges that the Tribunal failed to afford him procedural fairness (the claim made in Ground 1), other than to assert in Ground 3 that the Tribunal failed to comply with s.425(1) of the Migration Act.
The affidavit of 14 October 2011 attaches an additional document which elaborates somewhat upon those grounds. The first and third grounds raised by the applicant are related. Those grounds allege a want of procedural fairness. Having regard to s.422B of the Migration Act and subject to any claim of an apprehension of bias, issues of procedural fairness must be addressed by reference to the statutory procedural code binding the Tribunal.
I am satisfied from the evidence that the applicant was lawfully invited to a hearing before the Tribunal. The invitation was issued by letter dated 30 June 2010 directed to the applicant at his residential address. The hearing date nominated was 3 August 2010. The invitation was sent by registered post[28]. The applicant responded to that invitation on 6 July 2010. He stated in his response[29] that he did not require the services of an interpreter.
[28] CB 86
[29] CB 87
On 29 July 2010, the applicant appointed Mr Gordon Clarke of Playfair Visa & Migration Services, as his authorised recipient and representative[30]. Mr Clarke attended the Tribunal hearing[31]. The applicant told me from the bar table, and I accept, that Mr Clarke was retained at no cost to himself. The applicant contends that the hearing opportunity afforded him was unfair by reason of the lack of an interpreter. He contends that the absence of an interpreter led the Tribunal to misunderstand, or misconstrue, his claims. In particular, he contends that the absence of an interpreter led the Tribunal into error in dealing with the question of whether there was any Convention nexus with the harm that he fears.
[30] CB 89
[31] CB 90
I gave directions in this matter on 29 August 2011 at which time the applicant attended with the assistance of an interpreter. I gave the applicant an opportunity to file and serve an amended application and additional evidence by 10 October 2011. The applicant might hypothetically have been assisted by having a transcript of the Tribunal hearing available. However, the only evidence before me of what occurred at the Tribunal hearing is the Tribunal’s own record of the hearing reproduced in its reasons for decision. That record, from [40]-[78] of the Tribunal’s reasons[32] does not disclose any difficulty encountered by either the presiding member or the applicant by reason of the absence of an interpreter. There is also no indication that any issue was raised by Mr Clarke.
[32] CB 144–149
Paragraph 73 of the Tribunal’s reasons establishes, to my satisfaction, that the Tribunal was left in no doubt that the applicant was asserting a political motivation for the killing of his friend Shafiqul Islam. In my view, the applicant has failed to establish an arguable case of jurisdictional error by reason of procedural unfairness, whether such argument is advanced by reference to the general law or by reference to s.425 of the Migration Act.
To the extent that Ground 1 of the application might be taken to incorporate a claim that the Tribunal failed to provide the applicant with an opportunity to comment on relevant information, the Minister submits, and I accept, that the Tribunal's obligations in this regard were circumscribed by s.424A of the Migration Act. There is no evidence that the Tribunal failed to comply with its obligations under that provision as there was no information upon which the Tribunal based its decision to affirm the delegate's decision which was required to be put to the applicant for comment pursuant to s.424A of the Migration Act.
The Tribunal had regard to information provided by the applicant himself and to independent country information (not specifically about the applicant) in reaching its decision, which are excluded from the operation of s.424A(1) by virtue of s.424A(3) of the Act: SZOHJ v Minister for Immigration [2010] FCA 1268 at [27] (concerning independent country information).
The applicant also contends that the Tribunal failed to consider crucial evidence that was constructively before it. When I explored this in oral argument with the applicant, it was apparent that his concern relates to the failure of the Tribunal to accept that he is a person to whom Australia owes protection obligations in circumstances where the Tribunal accepted the applicant’s account of the killing of Mr Islam, his witnessing of that event and of the threats subsequently made against him. At [96] of its reasons[33] the Tribunal said:
Under s.91R(1)(b) of the Act, persecution feared by an applicant must involve serious harm. The Tribunal accepts that the harm feared by the applicant is serious harm in that [it] involves a threat to the applicant’s life or liberty and significant physical ill-treatment to him, and, given that there have been recent threats to the applicant’s family, that there is a real chance of this harm being inflicted on the applicant in the reasonably foreseeable [future].
[33] CB 153
Crucially, at [99] of its reasons[34], the Tribunal found that the attack leading to the death of Mr Islam was an act of hooliganism and retaliation for the refusal of Mr Islam to give money to his attackers. The Tribunal understood that the applicant was asserting a political motivation for the attack but did not accept that assertion. The Tribunal preferred a newspaper report of the death of Mr Islam which pointed to an ordinary criminal rather than a political motivation. The Tribunal further found that it was Mr Islam and not the applicant who was the target of the attack.
[34] CB 154
The Tribunal reasoned at [101] of its reasons[35] that if the attack had been politically motivated, as the applicant contends, it would have been likely that the perpetrators would have taken aim at the applicant, but that did not occur. On the applicant’s own account, the threats against him arose because he was a witness to the murder of Mr Islam, not because of his political affiliation.
[35] CB 154
The Tribunal accepted that the applicant supports the Bangladeshi opposition party[36], accepted that he was a witness to a murder[37] and accepted that he feared serious harm from the perpetrators as a result[38]. The Tribunal nevertheless found that neither the attack, nor any potential repercussions for the applicant were politically motivated[39] and that the applicant did not face a risk of persecution if he returned to Bangladesh[40]. Findings of fact are within the proper exercise of the Tribunal’s function: Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423.
[36] CB 153, [91]
[37] CB 153, [92]
[38] CB 153, [95]-[96]
[39] CB 154-155, [99], [101] and [103]
[40] CB 156, [108]
This finding was:
a)both reasonably open on the material before it; and
b)based on the applicant's own evidence that:
i)the murder of his friend related to a private dispute, unrelated to any Convention reason[41];
ii)the perpetrators were arrested for the attack and court proceedings in relation to the crime are ongoing[42]; and
iii)he had had limited involvement in the BNP since his university years[43].
[41] CB 154-155, [99], [102]
[42] CB 153, [93]
[43] CB 156, [106]
To the extent that the applicant seeks to challenge the weight the Tribunal gave to the applicant's evidence, or particular pieces of evidence, the Minister submits and I accept that this was a matter for the Tribunal to decide: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 291-2; NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[12].
I am satisfied that the Tribunal did not overlook any element or integer of the applicant’s claims. Neither did the Tribunal fail to consider any evidence bearing upon those claims.
I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the tribunal. It follows that the application must be dismissed. I will so order, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent’s costs and disbursements of an incidental to the application in the sum of $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 3 November 2011
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