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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa -findings of fact - no reviewable error found.

SZAJX Minister for Immigration [2004] FMCA 175 (22 March 2004)

SZAJX Minister for Immigration [2004] FMCA 175 (22 March 2004) Last Updated: 12 May 2004 FEDERAL MAGISTRATES COURT OF AUSTRALIA SZAJX v MINISTER FOR IMMIGRATION [2004] FMCA 175 MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa -findings of fact - no reviewable error found. Migration Act 1958 (Cth) Applicant: SZAJX Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS File No: SZ 595 of 2003 Delivered on: 22 March 2004 Delivered at: Brisbane Hearing date: 4 March, 2004 Judgment of: Jarrett FM REPRESENTATION Counsel for the Applicant: Mr. S. Churches Solicitors for the Applicant: Michaela Byers Solicitors for the Respondent: Mr. A. Markus Australian Government Solicitor ORDERS (1) Application dismissed. (2) Reserve the question of costs to a date to be fixed; (3) Respondent to file and serve any written submissions in support of any application for costs by 4.00pm on 29 March, 2004; (4) Applicant to file and serve any written submissions in response to any application for costs by 4.00pm on 2 April, 2004. (1) FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY SZ595 of 2003 SZAJX Applicant And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent REASONS FOR JUDGMENT 1. This is an application under the Judiciary Act 1903 for relief in respect of a decision of the Refugee Review Tribunal ("the RRT") made on 18 September, 2001 and handed down on 9 October 2001. The applicant, who is a citizen of Bangladesh, arrived in Australia on 11 September, 1998. He lodged an application for a protection (class AZ) visa on 21 May, 1999 with the Minister's department. A delegate of the Minister refused the application for a protection visa on 15 June, 1999. On 15 July, 1999 the applicant applied for review before the RRT. 2. On 16 July, 2001 the Tribunal wrote to the applicant, inviting him to come to hearing of the Tribunal to give oral evidence in support of his claims (p.63 Court Book). The applicant accepted the opportunity and a hearing took place on 10 September, 2001. The applicant gave oral evidence in support of his claims at the hearing. His adviser was also given the opportunity to put submissions to the Tribunal. On 18 September, 2001 the Tribunal affirmed the Delegate's decision not to grant the applicant a protection visa. 3. The Tribunal identified three broad claims made by the applicant. The first was that if the applicant returned to Bangladesh he would, by reason of his past involvement in politics, be seen as a political activist and therefore still face harm at the hands of his political opponents, who now controlled the government. The second was that, even if he withdrew from politics, he would nonetheless be at risk of harm from his political opponents because of the political activities of two of his brothers. The third ground was that if he returned to Bangladesh and withdrew from politics, as he intended to do if he returned, he would suffer harm from his political allies because his party colleagues would expect him to be involved in their activities. He alleged that they would consider him to be a traitor if he did not join up with them again. 4. In his statutory declaration made on 31 Aug 2001 the applicant put this third ground in the following terms: "I believe that if I return to Bangladesh I will continue to have problems because of my previous political activities there. I will be pressured by my previous political friends to become reinvolved in politics. If I ignore this pressure then I will become an outcast in the eyes of these people and they will have suspicions against me that I have turned against them. This unfortunately is in the nature of the life in Bangladesh. It is a fact of life that once a student becomes involved in politics with a particular group that person is expected by his co-party workers to continue. A failure to do so leads to and makes the person a target from his previous allies." 5. The Tribunal accepted the applicant's claims that he was merely a member of his chosen political party and not part of the executive. It was also accepted that before he left Bangladesh he was active in politics and his brothers were also politically, one more so than the other. The Tribunal accepted that the applicant was now alienated from politics in Bangladesh and no longer wished to play an active role in politics. 6. The Tribunal examined the first two claims made by the applicant notwithstanding that those claims were "not pursued at the hearing". The Tribunal found against the applicant in respect of each of those claims. 7. In respect of the third claim, the Tribunal found: "The Tribunal finds no evidence before it to support the applicant's claims that merely by withdrawing from politics one is in danger from one's former colleagues. Certainly the independent evidence indicates that violence is endemic in Bangladesh politics but all the reports indicate that this violence is directed by political supporters of one allegiance against political supporters of opposing allegiances. The applicant claims he was in fact well known to `all the top leaders' and that because they wanted him to become more involved, his going overseas would have been viewed as `disobedience' and they wish to punish him for this. The Tribunal finds this highly implausible. He did not according to his evidence hold any prominent position of office and has now been overseas for three years. The tribunal cannot imagine what benefit it would be to those he claims to fear to `punish' someone who would not want to become involved and hence would not really be of use to the party. Moreover, one might suppose that in so doing, those he claims to fear would so alienate the applicant's brothers who retain a commitment to the party. In the circumstances, the Tribunal is of the view that the chance the applicant would be harmed if he returned to Bangladesh and resumed his life without involving himself in politics, is remote." 8. The applicant applied to the Federal Magistrate's Court of Australia for relief pursuant to s.39B of the Judiciary Act 1903. Four grounds were originally specified in the application. Before me grounds three and four were abandoned. The applicant sought leave, however, to pursue three grounds in addition to grounds one and two in the application. Those grounds were set out in the applicant's outline of argument. There being no opposition, I granted leave to pursue those additional grounds. 9. The first two grounds specified in the application alleged that the Tribunal did not accord the applicant procedural fairness. The submission was that certain material before the Tribunal and which the applicant apprehends was against his case, was not put to him for comment, as it should have been. 10. The material the applicant alleges should have been submitted to him was a report of the U.S. Department of State released on or about 23 February, 2001. In that report the following appears: "Violence also is endemic between the student political wings of the major national parties, and between rival factions within the parties..." There then follows an example of intra-party violence that took place in July of 2000. 11. It was submitted to me that the Tribunal acted on the basis that the political violence in Bangladesh only took place between opposing political parties. So much is said to appear from the sentence "Certainly the independent evidence indicates that violence is endemic in Bangladesh politics but all the reports indicate that this violence is directed by political supporters of one allegiance against political supporters of opposing allegiances." that I have extracted above. 12. It was submitted that the Tribunal misunderstood the evidence from the relevant report and that the evidence from the report I have extracted above supported the applicant's claim that he would be subjected to violence from his own political allies. It was submitted that because the Tribunal failed to understand that evidence, it failed to properly appreciate its impact upon the applicant's case and the importance that it be put to him for comment. 13. I do not accept that the Tribunal has misunderstood the evidence contained in the relevant report extracted above. That evidence does not seem to me to be against the applicant's case. The evidence establishes that there is intra-party violence between factions of the same party - or allegiances to use the words of the Tribunal. The applicant's case was never that he would be subjected to intra-party violence from opposing factions, but rather violence from party members generally because of his desire to no longer involve himself in politics. The evidence pointed to by the applicant in support of these grounds does not bear one way or the other on that issue. 14. The Tribunal's finding was that there was no evidence to support the applicant's claim that merely by withdrawing from politics one is in danger from one's former colleagues. The evidence that the applicant has specifically isolated was not contrary to the applicant's. I accept the respondent's submission that there was simply no country information of which the Tribunal was aware that supported the claim made by the applicant. 15. In my opinion, there was no need for that evidence identified by the applicant to be brought to his attention for comment by him. I do not consider that the applicant has been denied procedural fairness by reason of the matters raised in grounds one and two of his application. 16. The third ground relied upon by the applicant was that the Tribunal had applied the wrong test to determine whether the applicant's fear of persecution for a Convention reason was well founded. It was argued that the Tribunal adopted a reasoning process based upon "motive" rather than applying the "real chance" test. It was submitted that the incorrect approach was revealed in the sentence: "The Tribunal cannot imagine what benefit it would be to those he claims to fear to `punish' someone who would not want to become involved and hence would not really be of use to the party". 17. In its reasons, the Tribunal expressly referred to the tests to be applied in determining the applicant's review. In particular, the Tribunal referred to the tests set out in Chan v Minister for Immigration (1989) 169 CLR 379. Specifically, the Tribunal said: Fourth, an applicant's fear of persecution for a Convention reason must be a `well founded' fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a `well-founded fear' of persecution under the Convention if they have a genuine fear founded upon a `real chance' of persecution for a convention stipulated reason. A fear his well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A `real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%." 18. In my opinion the Tribunal has not failed to apply the real chance test, nor has it applied another reasoning process reliant on motive to determine the applicant's claims on this matter. The statement complained of by the applicant is nothing more than a statement made by the Tribunal in an effort to objectively assess whether a real chance of persecution existed. Perhaps it is not expressed as well as it might have been, but I bear in mind the words of the High Court of Australia in MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272: 31. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin (26): `The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.' 19. The fourth ground relied upon by the applicant was that the Tribunal had asserted that the applicant could give up his previous political activity or behave `reasonably' and that if he did so, he would not be subject to persecution in Bangladesh. It was said that this was impermissible by reason of the judgment in Appellant S395 v. MIMA (2003) 203 ALR 112. 20. The difficulty with this ground, however, is that the Tribunal did not approach its task in that manner. It was the applicant's own evidence that he no longer wished to be associated with politics in Bangladesh. The Tribunal did not approach its consideration of this matter on the basis that the applicant should give up his political activities. It was his evidence that he had done so and that he would not renter political life. He wanted to lead a peaceful life and because of that wish he claimed that he would be subjected to persecution for a convention reason. 21. I consider that the applicant's submission on this ground misunderstands the approach of the Tribunal, which in all respects accorded with the applicant's own evidence. I do not consider that the applicant has made out this ground for review. 22. The fifth ground argued before me was that the Tribunal made a finding of `implausibility' regarding the violence to which the applicant claimed he would be subjected if he returned to Bangladesh. I have referred to the relevant finding above. It was submitted that the applicant made his claims in this respect and there was no material to the contrary. 23. The Tribunal, however, was not bound to accept the claims made by the applicant. It was submitted that the material from the U.S. State Department supported the applicant's claims. For the reasons I have given above, I do not think that the State Department material could have assisted the applicant's case. 24. The country information the applicant claims to be supportive of his case is information regarding violence between student political wings of the major national parties and between rival factions within those parties. It does not support and, in my opinion cannot support, a finding that a person will be persecuted by former political colleagues if he chooses to withdraw from politics altogether. The finding made by the Tribunal was reasonably open to it on the evidence before it. 25. In my opinion the Tribunal has considered the issue raised by the applicant and found against him on it. This ground seeks to review a finding of fact made by the Tribunal without any attendant error of law. Conclusion 26. I find that the decision of the RRT is a privative clause decision, having regard to the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2. No jurisdictional error has been demonstrated. I uphold the objection to competency. In the circumstances, I will dismiss the application. 27. I will reserve the question of costs to a date to be fixed. I will make directions as to the filing of any written submissions in the event that an application for costs is made. In the event that no application is made within the next seven days, there will be no order as to costs. I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Jarrett FM Associate: Date:
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