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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming political persecution in Bangladesh - applicant failed to attend RRT hearing - visa claims found to be mere assertions - numerous jurisdictional errors alleged but none substantiated - judicial review application dismissed.

SZBCG v Minister for Immigration [2004] FMCA 954 (10 December 2004)

SZBCG v Minister for Immigration [2004] FMCA 954 (10 December 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCG v MINISTER FOR IMMIGRATION
[2004] FMCA 954




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming political persecution in Bangladesh - applicant failed to attend RRT hearing - visa claims found to be mere assertions - numerous jurisdictional errors alleged but none substantiated - judicial review application dismissed.




Migration Act 1958 (Cth), s.474

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration v SCAR (2003) 198 ALR 293

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601

NAHT of 2002 v Minister for Immigration [2002] FCA 1049

NASB v Minister for Immigration [2004] FCAFC 24

SCAA v Minister for Immigration [2002] FCA 668

SZAXU v Minister for Immigration [2004] FMCA 775

Applicant:
SZBCG




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1511 of 2003




Delivered on:


10 December 2004




Delivered at:


Sydney




Hearing date:


10 December 2004




Judgment of:


Driver FM




REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:


Ms T Wong




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1511 of 2003

SZBCG



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 10 June 2003 and handed down on 8 July 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and made claims of political persecution. The background to his present application in this Court is comprehensively set out in written submissions prepared on behalf of the Minister by Ms Wong. I adopt as background paragraphs 3-20 of Ms Wong's written submissions for the purposes of this judgment:

The applicant was born in 1962 in the Noakhali district of Bangladesh: court book, page 15. He arrived in Australia on 25 July 1999: court book, page 17.

On 1 September 1999, the applicant made his first application for a Protection Visa, which was refused by the Minister's delegate on 15 October 1999. The decision of the Minister's delegate was affirmed by the RRT on 3 April 2002 in a decision handed down on 30 April 2002: court book, page 60.

On 24 May 2002, the applicant made a second application for a Protection Visa, which was accepted by the Department on the basis that the first application was invalidly made (the "May 2002 Application"): court book, pages 5-28; 60.

On 20 June 2002, the Minister's delegate advised the applicant of material which may lead to rejection of his application and gave the applicant an opportunity to comment upon this material: court book, pages 37-38. The applicant made no comment upon the material provided: court book, page 43.

On 30 July 2002, the Minister's delegate refused to grant the applicant a Protection Visa: court book, pages 39-45.

On 11 August 2002, the RRT received an application for review of the decision of the Minister's delegate: court book, pages 46-49. The application failed to state any reasons why the applicant considered himself to be a refugee: court book, page 48.

On 12 August 2002, the RRT acknowledged receipt of the application, and invited the applicant to send any documents, information or other evidence that the applicant wanted the RRT to consider: court book, pages 50-51.

On 16 April 2003, the RRT informed the applicant that it was unable to make a decision in his favour on the information that had been provided to the RRT, and invited the applicant to come to a hearing of the Tribunal to give oral evidence and present arguments in support of his claims: court book, pages 52-53.

On 10 June 2003, the RRT scheduled a hearing on the application, which the applicant did not attend: court book, page 68.

On 8 July 2003, the RRT handed down its decision affirming the decision of the Minister's delegate not to grant a protection visa to the applicant: court book, pages 59-73.

The applicant's claims

The applicant claims to be a citizen of Bangladesh and a "staunch supporter and active worker of the BNP", the Bangladeshi political party currently in power: court book, pages 16, 21. In his May 2002 Application, the applicant stated his reasons for leaving Bangladesh as follows (court book, page 21):

My association and generous contribution to my party made me the target of the then ruling party the Awami League, who are now in opposition though but still holding enormous power in Bangladesh. Their hooligans ruthlessly treated me and the Awami League people in Noakhali devastated my family. In one word I would like to say that my life was under constant threats in Bangladesh, which ultimately forced me to leave my country for protection overseas. My family in Bangladesh was also unsafe and repeatedly harassed by the Awami people, now though my party the BNP is in power but could not get hold of the AL miscreants who made my life miserable. I want protection here and want to bring my family as well for a secured and safe life.

The May 2002 Application did not provide any further information regarding the nature of the applicant's political activities or persecution he had suffered while in Bangladesh.

The RRT's decision

The RRT noted that the applicant had had at least six opportunities to present his claims, and had not provided any additional information than what was stated in his May 2002 Application (court book, pages 68-69). These opportunities consisted of (court book, page 69):

a) the May 2002 Application itself;

b) the opportunity to reply to the June 2002 letter of the Minister's delegate informing the applicant of material which may lead the decision maker to reject his application;

c) the RRT application of August 2002;

d) the opportunity to respond to the August 2002 letter of the RRT asking the applicant to immediately send to the RRT any documents, information or other evidence for consideration by the RRT;

e) the opportunity to respond to the April 2003 letter of the RRT notifying the applicant of his hearing date, and asking the applicant to send any new documents or written arguments that the applicant wanted the RRT to consider; and

f) the hearing of 10 June 2003.

Other than the limited description of his claims in his May 2002 Application, the applicant did not avail himself of any of the five remaining opportunities to provide additional evidence to either the Minister's delegate or the RRT, and in particular, did not attend the hearing of 10 June 2003 (court book, page 69).

In these circumstances, the RRT found that the applicant's claims remained nothing more than "mere assertions" and that the applicant had failed to satisfy the RRT that his claims had any truth to them (court book, page 69).

The RRT further held that that there was no reason to suppose that the applicant had any political profile outside of Naokhali and its immediate vicinity, and that there were many other parts of Bangladesh in which it would be reasonable to expect the applicant to be able to relocate (court book, page 71).

The RRT also found that the applicant could pursue politics in Bangladesh in a manner which did not involve violence, and that the applicant could do so and have little to fear from rival political groups (court book, page 72). The RRT held that if the applicant did ever fall foul of the Awami League that he would secure justice through the superior courts in Bangladesh (court book, page 72).

In summary, the RRT held that the applicant had no well-founded fear of persecution within the meaning of the Refugees Convention as amended by the Refugees Protocol. Accordingly, the RRT was satisfied that the applicant was not a refugee.

2. Ms Wong also conveniently sets out the grounds of review contained in the applicant's amended application filed on 23 February 2004. The applicant confirmed that he relies on that amended application. I adopt paragraph 21 of Ms Wong's written submissions for the purpose of identifying the grounds of review:

The grounds upon which the applicant seeks to rely can be paraphrased as follows:

a) the RRT was wrong in failing to find that the applicant was persecuted by the Awami League and that his family was ill-treated by the Awami League (Grounds 1-2);

b) the RRT made its decision in bad faith (Ground 3);

c) the RRT deprived the applicant of natural justice (Ground 4);

d) the RRT failed to take into account relevant facts (Grounds 5, 6, 9);

e) the RRT took into account facts which were not relevant to the applicant's claim (Ground 8);

f) the RRT's decision was predetermined and affected by bias (Grounds 7, 10, 12);

g) the RRT depended upon country information, and failed to undertake its own independent investigation of the conditions in Bangladesh (Ground 11);

h) the RRT was wrong when it held that the superior courts sometimes rule against the government in Bangladesh, because it failed to take into account that the government in Bangladesh does not respect High Court rules (Ground 13);

i) the RRT was wrong when it held that the judiciary of Bangladesh was independent as the judiciary in Bangladesh is under the Ministry of Law and Judiciary and the career of judges solely depends on the policy maker's satisfaction (Ground 14);

j) the RRT did not complete the exercise of its jurisdiction as it made no findings as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future (Applicant's Submissions at para. 12); and

k) the RRT did not provide the applicant with particulars of information, namely that violence against a popular politician of Bangladesh had subsided (Applicant's Submissions at para. 13).

3. The amended application follows a pattern of asserted grounds of review with which this court is familiar. The applicant also relies upon written submissions filed on 22 November 2004 which are also familiar and formulaic in content. The applicant told me that he was assisted by a friend in preparing his documents but that he did not pay his friend any money.

4. The applicant also relied on a further outline of written argument which was filed in court today. That document repeats in different words many of the grounds of review contained in the amended application. The applicant told me that to the extent that any grounds of review in the amended application were not referred to in his written outline of arguments they have been abandoned. However, because the outline of written arguments uses different terminology to that used in the amended application it is by no means easy to identify what the abandoned grounds are. The applicant was not able to assist me in oral argument in identifying any abandoned grounds of review. I proceed in the circumstances on the basis that none of the grounds of review have been abandoned.

5. The applicant was also unable to usefully expand upon his written arguments in oral submissions. He states that he was unable to afford any legal representation. It appears that he was dependent upon the assistance of his friend to identify grounds of review and set down written arguments. Unfortunately for him the assistance of his friend is not very productive. The grounds of review in the amended application as expanded upon in the written arguments are meaningless in the absence of supporting particulars and evidence. The reliance on the High Court decision in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 is mysterious.

6. To the extent that the application asserts procedural unfairness, the short answer is that the applicant declined an opportunity to attend a hearing before the RRT. Having declined that opportunity, the applicant cannot now properly complain that relevant material was not discussed with him.

7. Ms Wong has dealt in detail with the grounds of review advanced by the applicant in her written submissions. I find myself in complete agreement with those written submissions. I adopt paragraphs 23-47 of those written submissions for the purposes of this judgment:

The applicant's complaints that the RRT failed to find that he was persecuted by the Awami League, or that his family was ill-treated by the Awami League are attempts to have this Court review the decision of the RRT on its merits and do not fall within the scope of jurisdictional error: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259.

The applicant did not support his application with sufficient evidence of his involvement in Bangladeshi politics, despite several warnings and numerous requests for information from the Minister's delegate and later the RRT. The RRT's determination that the applicant had failed to satisfy the RRT of his well-founded fear of persecution was therefore a conclusion open to it on the evidence presented.

Ground 3: Decision made in bad faith

Grounds 7, 10, 12: RRT was biased and had pre-determined its decision

The applicant has not provided any particulars of his claim that the RRT's decision was made in bad faith. The only evidence before the Court of the conduct of the RRT consists of its letters to the applicant and its decision to refuse the applicant a protection visa. This evidence demonstrates that the RRT has "made an honest and genuine attempt to undertake the task required by the legislation", which rules out the availability of any claim of lack of bona fides on the part of the RRT: NAHT of 2002 v Minister for Immigration [2002] FCA 1049 at [36] per Beaumont J.

The applicant also claims that the decision of the RRT was affected by actual bias, and in ground 7 of the amended application that the decision of the RRT was "preset in the back of it's mind". In ground 10 of the Amended Application, the applicant states that the RRT made up its mind "without any inquiry regarding my claim" and in ground 12, that the RRT made its findings in the face of contradictory evidence of violence as a pervasive element in Bangladesh's politics.

The only evidence available to prove the applicant's claims of bias and pre-determined decision making are the published reasons for decision of the RRT. In these circumstances, "it will be a rare and exceptional case where actual bias can be demonstrated": SCAA v Minister for Immigration [2002] FCA 668 at [38] per Von Doussa J. As stated by Von Doussa J in SCAA (at [38]):

Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor or prejudgment of the issues that fell for decision.

The RRT's reference to a country report stating that "Violence, often resulting in deaths, was a pervasive element in the country's politics" (at court book, page 67) was consistent with its subsequent findings that the applicant had failed to substantiate his claims of having significant involvement in the politics of Bangladesh. The findings of the RRT regarding the inadequacy of the evidence presented by the applicant were adverse findings which gave rise "to no inference as to the state of mind of the decision maker". Therefore, the applicant's claims that the decision of the RRT was pre-determined and infected with bias should be rejected.

Ground 4: Denial of natural justice

The applicant's submissions state that the RRT did not follow the procedures of the Migration Act 1958 (Cth) ("the Migration Act"), and that the facts in Muin v Refugee Review Tribunal are identical with those of the applicant's case: see Applicant's Submissions at para. 2. In particular, the applicant relies upon the fact that a letter was sent to Mr Muin which used identical wording to a letter also sent to the Applicant: see Applicant's Submissions at para 3.

In Muin, the RRT was not provided with materials which were available to the original decision-maker, consisting of background reports and articles regarding country conditions in Indonesia. However, the RRT had written to Mr Muin stating that it had looked at "all the material relating to [his] application" but was not prepared to make a favourable decision based solely upon it. A majority of the High Court held that Mr Muin had been misled by the letter into thinking that it was unnecessary for him to draw the materials to the attention of the RRT, and that he had been denied procedural fairness as a result: Muin per Gaudron J at [58]-[64], Gummow J at [171], Kirby J at [194]-[195], Hayne J at [256]-[257] and Callinan J at [305]-[309].

In the present case, there is no suggestion that materials that were available to the Minister's delegate were not also made available to the RRT and the applicant has not provided any description of documents that should have been before the RRT which were not. Nor has the applicant satisfied the other requirements of Muin, by stating how such an alleged failure has affected him and what he might have done if he had known of the alleged failures: SZAXU v Minister for Immigration [2004] FMCA 775 at [5]-[6] per Raphael FM.

In these circumstances, the applicant's claims that he was denied procedural fairness have no substance.

In paragraph 4 of the Applicant's Submissions, he states that he was invited to give oral evidence before the RRT on 16 April 2003, and attended to give oral evidence in support of his protection claims. The decision of the RRT however clearly states that the applicant's hearing was scheduled for 10 June 2003, not 16 April 2003, and further that the applicant did not attend that hearing to give evidence: court book, page 68. The first two sentences of paragraph 4 of the Applicant's Submissions should therefore be disregarded as factually inaccurate.

Grounds 5, 6, 9: Failure to take into account relevant facts

Ground 8: Taking into account irrelevant facts

In grounds 5, 6, 8 and 9 of the Amended Application, the applicant has claimed that:

a) the RRT "denied the evidentiary proof of my claim";

b) the RRT's decision "did not reflect the material facts of my claim";

c) the RRT "mixed up many facts with this decision which affected the decision"; and

d) the RRT "concentrated in particular fact, while ignored many other facts in this condition".

Jurisdictional error can occur where a tribunal fails to take into account relevant facts or takes into account irrelevant facts: Craig v South Australia (1995) 184 CLR 163 at 179. However, the applicant has not particularised these grounds to provide any substance to his claims. The RRT's decision demonstrates a careful analysis of the evidence placed before it and is not amenable to challenge on these bases.

Ground 11: Failure to investigate country conditions

Ground 11 of the Amended Application states that the RRT "solely depended on country information". The Applicant's Submissions further state that the RRT failed to investigate his claims through DFAT or any other independent sources, and that the RRT (at [4]):

heavily depended in their handing of the issues based on the generalized facts and findings of the Department of Immigration and Multicultural and Indigenous Affairs and generalised DFAT reports.

It was for the applicant to present information to the RRT to advance his arguments that he had a well-founded fear of persecution for a Convention reason, and for the RRT to decide whether that claim was made out on the basis of the information before it: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ. As stated by Gray, Cooper and Selway JJ in Minister for Immigration v SCAR (2003) 198 ALR 293 at [36]:

It is clear that s.425 of the [Migration Act 1958] does not require that the tribunal actively assist the applicant in putting his or her case; nor does it require the tribunal to carry out an inquiry in order to identify what that case might be.

The RRT had before it independent country conditions reports prepared by DFAT, the UK Home Office and the US Department of State, and took those reports into account when preparing its decision. The RRT was under no duty to make any further inquiries. By considering all evidence placed before it by the applicant, the RRT fulfilled its statutory duties under the Migration Act and its decision was unaffected by any jurisdictional error.

Grounds 13, 14: The role of the judiciary in Bangladesh

The applicant claims that the RRT erred in its finding that (at court book, page [67]):

the higher levels of the judiciary displayed a significant degree of independence and often ruled against the government.

In ground 13 of the Amended Application, the applicant states that he will submit a document from UNHCR that says clearly that the government in Bangladesh does not respect High Court rules. In ground 14, the applicant claims that it is not true that the judiciary in Bangladesh is independent, as the judiciary in Bangladesh is under the Ministry of Law and Judiciary and the career of judges solely depends on the policy maker's satisfaction.

The passage of the RRT's decision criticised by the applicant was taken from a United States human rights report for 2002: court book, page 67. The RRT was entitled, in conducting merits review of the application, to make findings of fact drawn from the country reports and other evidence presented before it. If the applicant seeks to challenge the findings of the RRT with fresh evidence, the evidence would need to be tendered in admissible form. Even assuming the evidence was tendered in admissible form, it could not be received by the court unless it satisfied the following requirements stated in NASB v Minister for Immigration [2004] FCAFC 24 at [42]:

first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different.

It is unlikely that the first of these requirements has been satisfied with respect to any fresh evidence sought to be tendered by the applicant. In any event, the second limb of the test is not satisfied as the finding challenged by the applicant was of limited significance to the RRT's findings against the applicant. As stated above, the RRT's principal findings were that the applicant had failed to provide sufficient detail to support his claims of a well-founded fear of persecution. Grounds 13 and 14 of the Amended Application must therefore fail.

Failure to make findings as to socio-political changes in Bangladesh

The applicant claims that the RRT erred because (Applicant's Submissions at para 12):

it made no findings as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future and it thus failed to assess whether the applicants' fears of being persecuted for being a member of a progressive political opinion of Bangladesh were well founded in the reasonably foreseeable future.

The RRT was aware of its obligation to assess the application "upon the facts as they exist when the decision is made" which required "a consideration of the matter in relation to the reasonably foreseeable future": court book, page 62.

However, there was no evidence before the RRT to suggest that there were to be any socio-political changes in Bangladesh in the reasonably foreseeable future which would strengthen the applicant's claim. This observation is particularly apposite in circumstances where the RRT found that the applicant had not provided sufficient evidence of his claims, and that the applicant was not a political participant of any significance: court book, pages 69-70. It was thus unnecessary for the RRT to gaze into the future to see whether the applicant's low political profile could become of concern: see SZAXU v Minister for Immigration [2004] FMCA 775 at [9] per Raphael FM.

Failure to provide particulars of information

The applicant states that the RRT failed to provide him with particulars of information which formed part of the RRT's decision, namely that "violence against a popular politician of Bangladesh had subsided" (Applicant's Submissions at para 13).

A finding that "violence against a popular politician of Bangladesh had subsided" does not appear in the RRT's reasons for decision. This ground must therefore be rejected.

8. It follows that no jurisdictional error in the decision of the RRT has been identified. The decision of the RRT is therefore a privative clause decision within the meaning of s.474 of the Migration Act.

9. Accordingly, the judicial review application must be dismissed. I do so.

10. On the question of costs, the application having been dismissed costs should follow the event. Ms Wong tells me that the Minister has incurred costs on a solicitor/client basis of $5,800. She seeks a costs order on a party/party basis fixed in the sum of $4,000. The applicant indicated that he did not oppose an order for costs in principle but that he would need time to pay. I do not intend to impose any time limit on the applicant for the payment of costs. I am satisfied that costs of the order of $4,000 have been reasonably and properly incurred by the Minister on a party/party basis. I take into account that there have been several hearings in this matter due to the applicant's non compliance with earlier court orders. I note that the applicant was ordered to prepare an amended application. The applicant also raised a large number of grounds of review to which the Minister needed to respond.

11. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 17 December 2004
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