SZQMW v Minister for Immigration
[2011] FMCA 957
•2 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQMW v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 957 |
| MIGRATION – Review of decision of Refugee Review Tribunal – request for impermissible merits review – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 476 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97 Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 Australian Heritage Commission v Mount Isa Mines Ltd 1997] HCA 10; (1997) 187 CLR 297 Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 |
| Applicant: | SZQMW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1686 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 2 December 2011 |
| Date of Last Submission: | 2 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 2 December 2011 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application made on 4 August 2011 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1686 of 2011
| SZQMW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore Judgment)
This is an application made on 4 August 2011 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 1 July 2011, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant is a national of Bangladesh who arrived in Australia from Palau, where he had been living, on 24 December 2010. He applied for a protection visa on 4 February 2011 (Court Book – “CB” – CB 1 to CB 35).
Claims to Protection
His claims to protection were that he had been falsely accused of murder in Bangladesh, and that the police were looking for him.
He was “socially associated” with the Bangladesh National Party (“BNP”) and his friends had killed local leaders of the opposition Awami League. He had fled to Palau where he had been living for several years.
The Delegate
The delegate refused the visa application on 5 April 2011 (CB 52 to CB 58). The delegate found that the applicant had effective protection in Palau, a country to which he had a current right to enter and reside. In these circumstances s.36(3) of the Act was engaged. The delegate found the applicant had effective protection in a third country. Australia therefore did not have protection obligations towards him. The visa was refused on this basis.
In any event, the delegate also considered the applicant’s claims in relation to Bangladesh. He found the applicant’s conduct and claims in this regard to be contrived.
The Tribunal
The applicant applied for review to the Tribunal on 5 May 2010 (CB 59 to CB 62). He provided a written statement to the Tribunal (CB 79 to CB 80). He attended a hearing before the Tribunal on 29 June 2011.
A friend gave evidence on his behalf (CB 81 and [24] at CB 88 – [45] at CB 94).
At the hearing the applicant expanded on his claims, and in particular that the Awami League thought he was spying on them ([30] at CB 90).
The Tribunal’s account of the hearing reveals the Tribunal discussed his circumstances in Palau ([32] – [33] at CB 91), and his claims as they related to Bangladesh. The Tribunal noted a number of inconsistencies in his account ([37] at CB 92 – [38] at CB 93), and put to him that it had difficulty in accepting key aspects of his factual claims.
The Tribunal put to the applicant that on the evidence before it he had the right to re-enter and reside in Palau. It again noted difficulties with the applicant’s explanation as to the loss of relevant documents ([39] at CB 93).
The Tribunal found that on the evidence before it the applicant had a presently existing, legally enforceable, right to re-enter and reside in Palau. Further, that on the evidence before it if he were to return to Palau there was no real chance that he would be refouled to Bangladesh. The Tribunal found that s.36(5) of the Act did not operate to preclude the operation of s.36(3) of the Act in relation to Palau ([54] at CB 97).
The Tribunal found the applicant had not taken all possible steps to avail himself of the right to re-enter and reside in Palau (a third country), and in these circumstances Australia did not have protection obligations towards him. The delegate’s decision was affirmed on this basis.
Application to the Court
The grounds now before the Court are in the following terms:
“1. The Tribunal miss calculated & made a decision of the claim without evidentiary proof.
2. The Tribunal made jurisdictional error in deciding the case particularly, the Tribunal failed to consider the currt human rights situation in Bangladesh.
3. The Tribunal made jurisdictional error in deciding that applicant do not have bar to enter Palau. The Tribunal did not say whether the applicant had a problem in returning to Bangladesh. The Tribul made an error in regard to assess the applicant case.”
[Errors in the original.]
Before the Court
Before the Court the applicant appeared in person. He was assisted by an interpreter in the Bengali language. Mr T Reilly of counsel appeared for the first respondent.
The applicant has not put anything further to the Court beyond his bare application. At the hearing the applicant said that he had consulted the lawyer on the panel of the “RRT Legal Advice Scheme” who had been assigned to advise him. Further, he had spoken to “one other person” in this regard.
The applicant also stated that he could not go back to Bangladesh and asked the Court to “save” his life. He further complained that he had no authority to return to Palau. In all, he restated some of the claims made to the Tribunal. In short, he sought impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481 (“Wu Shan Liang”)).
It is unfortunate that despite attempts by the Court at the first Court date and during the hearing to explain to the applicant the difference in the nature of these proceedings and those before the Court, the applicant persisted in pressing his factual claims to protection without any regard to the central issue in these proceedings, namely whether the Tribunal’s decision was affected by legal error.
The applicant has had the benefit of the opportunity of obtaining legal advice. He obtained advice from at least one other service. The Minister’s submissions, although brief, were quite clear. These were translated for him by the interpreter prior to the hearing today.
In all these circumstances the applicant has had time (an earlier hearing date was adjourned at his request) and the opportunity to present his case. His inability or vulnerability to accept that the Court cannot assist him in the way that he seeks does not detract from that circumstance.
The grounds of the application do not reveal jurisdictional error in the Tribunal’s decision.
Consideration
Ground one asserts the Tribunal miscalculated and made a decision without evidentiary proof. The complaint is both factually misconceived and misunderstands the nature of the task given to the Tribunal.
First, there was evidence before the Tribunal on which it based its findings and conclusions. This was the applicant’s own evidence, that of his witness, and the documentary evidence he provided.
Second, the Tribunal does not have to prove or disprove any proposition it relied on in reaching its conclusion. What the Tribunal is statutorily required to do is to reach a requisite level of satisfaction such that the visa must be granted (s.65 of the Act, see also SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225). In the circumstances the Tribunal could not reach this level of satisfaction. Its findings, on which this conclusion was based, were all reasonably open to it on what was before it. Further it gave cogent reasons for its decision. No error is revealed in these circumstances.
Third, as Mr Reilly submits, the applicant’s complaint, at most, is a challenge to the facts as found by the Tribunal. This is a call for impermissible merits review (Wu Shan Liang).
Ground two asserts jurisdictional error in that the Tribunal failed to consider the human rights situation in Bangladesh.
It is the case that the Tribunal found that s.36(3) of the Act applied to the applicant. I cannot see error in how the Tribunal arrived at this finding. While, as it is said, minds may differ, the Tribunal’s finding was reasonably open to it on what was before it. In these circumstances the applicant’s complaint is misconceived. Once it revealed this conclusion there was no error in the Tribunal proceeding on this basis without considering the situation in his country of nationality.
I note the Minister’s reference to SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97 per Rares J at [9], which provides support, at least by inference, to the approach taken by the Tribunal. In any event the language at the relevant part of the statute (ss.36(3), 36(5) of the Act) is clear.
To the extent that part of ground three asserts error in relation to the Tribunal not proceeding to consider the situation in Bangladesh, it fails for the reason set out above. To the extent that it attacks the Tribunal’s finding that there was no bar to his returning to Palau, the Tribunal’s relevant findings in this regard were probative of the evidence before it, reasonably open to make on this evidence, and for which it gave reasons. No error is revealed.
Further, the Tribunal plainly canvassed relevant law and was guided by this in its consideration in this regard (see [49] at CB 95 – [51] at CB 96). I cannot see error in the Tribunal’s understanding, nor any misapplication of these authorities.
Further, as Mr Reilly submits, even if the Tribunal had made some wrong finding of fact as appears to be the applicant’s complaint, there is no error of law, let alone jurisdictional error, in these circumstances (Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77, Australian Heritage Commission v Mount Isa Mines Ltd 1997] HCA 10; (1997) 187 CLR 297 at 303, Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [137]).
Conclusion
For the applicant to succeed, jurisdictional error in the Tribunal’s decision would need to be discerned. No such error is evident. The application should be dismissed. I will make an order accordingly.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 5 December 2011
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