SZVMQ v Minister for Immigration
[2015] FCCA 3325
•11 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVMQ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3325 |
| Catchwords: MIGRATION – Review of decision of former Refugee Review Tribunal – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth) |
| Abebe v Commonwealth of Australia [1999] HCA 14; (1991) 197 CLR 510 Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration [2004] FCAFC 10 at [11] SZSUT v Minister for Immigration & Anor [2014] FCCA 1084 SZTGX & Anor v Minister for Immigration & Anor [2014] FCCA 1847 WAEE v Minister for Immigration (2003) 75 ALD 630 |
| Applicant: | SZVMQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3166 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 11 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondents: | Ms A. Wong of DLA Piper |
INTERLOCUTORY ORDERS
The name of the second respondent is amended to “Administrative Appeals Tribunal.”
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3166 of 2014
| SZVMQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The Tribunal decision was made on 21 October 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions filed on 3 December 2015.
The applicant is a male citizen of Bangladesh, who applied for the visa on 18 November 2013. On 18 March 2014 the applicant provided a personal statement in which he made the following claims:
The applicant claimed to fear harm in Bangladesh at the hands of Islamic fundamentalists because of his membership of the Hindu minority and his involvement in protests over the leniency of sentences handed down on those found guilty of war crimes during the country's 1971 war of liberation. The applicant claimed that an aggravating factor was that Islamic fundamentalists are jealous of him having achieved high professional status as a doctor.
The applicant claimed to have suffered past harm in two separate incidents. The first occurred on 19 April 2013, where the applicant claimed he was attacked near his workplace by a group of men, who then stole his bag, money and phone. The second occurred on 7 August 2013, where he claimed Islamic fundamentalists tried to kidnap him near another workplace.
The applicant also provided a number of documents[1] which, among other things, certified the applicant as a doctor. The Minister’s delegate refused the application on 31 March 2014[2] and the applicant applied to the Tribunal on 16 April 2014.[3] He appeared before it on 25 September 2014.[4]
[1] CB 136-193
[2] CB 199-213
[3] CB 214-215
[4] CB 235
The decision of the Tribunal
The Tribunal accepted that the applicant was a member of the Hindu minority in Bangladesh and that his family background, education and employment history was as he had claimed. The Tribunal further accepted that the applicant was present at the Shahbag protests in February 2013, at various times, over a period of 25 days, and that he may have been drawn to the protests by his personal connection with the spokesman, a professional colleague[5].
[5] at [19]
The Tribunal further accepted that the applicant had experienced physical harm in Bangladesh in 2013[6], but was not satisfied that they were more than random acts of criminal violence.
[6] at [25]
However, the Tribunal was not satisfied[7] that the applicant had ever suffered harm in Bangladesh because of his political opinion (real or imputed) because it was not satisfied that:
a)the applicant had a significant profile as an activist;
b)his professional relationship with the spokesman for Gonojagoran Moncha, Dr Imran Sarkar was common knowledge;
c)there was any material to indicate that doctors and intellectuals have been targeted by Islamic fundamentalist groups;
d)the applicant's account of two incidents were the result of any deliberate, targeted attempt to kill or seriously harm him; and
e)Islamic fundamentalists would send threatening messages on his mobile telephone so long after the protests ceased.
[7] at [21]
Further, the Tribunal held that the fact that the applicant had raised at the hearing (for the first time) that his family's village shop was damaged and looted cast doubt that such an incident occurred. The Tribunal also held that the applicant's six week delay in leaving Bangladesh after he obtained his Australian visa raised further doubts as to his claim that he feared harm from Islamic fundamentalists.
In relation to the applicant's claim to fear harm in Bangladesh as a member of the country's Hindu minority, the Tribunal accepted that these problems existed for the Hindu minority as a whole[8]. The Tribunal considered the applicant's individual circumstances in detail[9], however it was not satisfied that the applicant had ever suffered harm in Bangladesh in the past because of his Hindu religion[10] due to the vagueness of the applicant's claims[11].
[8] at [25]
[9] at [25]
[10] at [26]
[11] see [25]
The present proceedings
These proceedings began with a show cause application filed on 14 November 2014. The applicant continues to rely upon that application. He has not taken up the opportunity I afforded him to file and serve an amended application or additional evidence. There are three grounds in the application:
1. The Tribunal did not give any weight to the supporting documents which I lodged before the Tribunal in support of my claims.
2. The Tribunal failed to uphold my natural justice.
3. The Tribunal failed to exercise its jurisdiction under the Migration Act.
The application is supported by a short affidavit which I received.
I also have before me as evidence the court book filed on 15 January 2015.
Only the Minister made written submissions.
I invited oral submissions from the applicant today after explaining to him that the grounds in his application were very general and would need to be explained. He referred to his fear of harm in Bangladesh. I explained to him that that submission went to the merits of the Tribunal decision rather than any issue of the validity of that decision. He was either unwilling or unable to put any material legal submission.
The Minister’s legal submissions deal with the grounds of review advanced in the application. I agree with those submissions.
The applicant’s grounds in his application are general and formulaic[12]. In the absence of further particularisation, they do not establish error in the decision of the Tribunal and should therefore be dismissed.
[12] SZTGX and Anor v Minister for Immigration & Anor [2014] FCCA 1847 per Nicholls J; SZSUT v Minister for Immigration & Anor [2014] FCCA 1084 per Raphael J; SZSPO v Minister for Immigration& Anor [2013] FCCA 1012 per Judge Barnes; SZRMS v Minister for Immigration& Anor [2013] FMCA 161 per Barnes FM; SZRJY v Minister for Immigration & Anor (No2) [2012] FMCA 756 per Barnes FM; and SZQFV & Anor v Minister for Immigration & Anor [2011] FMCA 927 per Barnes FM
The applicant’s grounds as explained orally appear to constitute an impermissible request for the Court to engage in merits review based on the applicant’s dissatisfaction with the Tribunal’s findings.[13]
[13] Abebe v Commonwealth of Australia [1999] HCA 14; (1991) 197 CLR 510 at 53-54; Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
Ground 1
The applicant provided the following documentary evidence in support his claims:
a)threatening text messages to the applicant; and
b)a letter from the applicant to the police station in Dhaka reporting a threatening incident on 7 August 2013.
The Tribunal expressly considered the documentary evidence provided by the applicant in support of his claims. In any event, it is not necessary for the Tribunal to refer to every piece of evidence in its written reasons[14]; and it is for the Tribunal to determine the weight given to the information it relies on[15]. Further, the onus is on the applicant to establish the basis for inferring that material has not been considered by the Tribunal, which the applicant has not done[16].
[14] WAEE v Minister for Immigration (2003) 75 ALD 630 at [46]
[15] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]
[16] Minister for Immigration v SZGUR (2011) 241 CLR 594
The Tribunal considered the significance of the text messages were considered by the Tribunal at [20] but given little weight due to the implausibility that threats would be made so long after the protests ceased.
The letter from the applicant to the police station was mentioned at [12] of the Tribunal’s decision. The Tribunal ultimately accepted that the applicant was assaulted on 7 August 2013 which it found amounted to random acts of a criminal nature without any Convention basis[17].
[17] see [25]
The applicant also submitted various documents in relation to his study of medicine. Not all those documents are mentioned by the Tribunal, however given the Tribunal's acceptance that the applicant worked as a medical professional, nothing turns on this.
Grounds 2 and 3
The second and third ground make broad assertions that the Tribunal failed to “uphold natural justice” and that it failed to exercise its jurisdiction under the Migration Act 1958 (Cth) (Migration Act). As noted above, these grounds are general and formulaic, and in substance, merely seek the Court to engage in impermissible merits review.
The allegation of a breach of natural justice lacks meaningful content, and it is apparent that the Tribunal did exercise its jurisdiction in this matter thus resulting in the decision under review.
In relation to the third ground, there is no evidence before the Court, nor is it apparent from the Tribunal’s reasons, that the Tribunal did not comply with its obligations under the Migration Act.
The allegation of a breach of natural justice lacks meaningful content, and it is apparent that the Tribunal did exercise its jurisdiction in this matter thus resulting in the decision under review.
On my own perusal of the available material I cannot discern any arguable case of jurisdictional error by the Tribunal. The applicant has not advanced any arguable case.
I conclude that the application should be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) and I so order.
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 and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I will also order that the name of the second respondent be amended to the Administrative Appeals Tribunal.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 14 December 2015
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