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MIGRATION - Application to review decision of Refugee Review Tribunal - no jurisdictional error.

SZAXY v Minister for Immigration [2004] FMCA 743 (18 October 2004)

SZAXY v Minister for Immigration [2004] FMCA 743 (18 October 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAXY v MINISTER FOR IMMIGRATION
[2004] FMCA 743




MIGRATION - Application to review decision of Refugee Review Tribunal - no jurisdictional error.




NAMW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 264

NAHV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 214

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241

Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal [2002] HCA 30

Applicant:
SZAXY




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1323 of 2004




Delivered on:


18 October 2004




Delivered at:


Sydney




Hearing date:


18 October 2004




Judgment of:


Barnes FM




REPRESENTATION

Counsel for the Applicant:


Nil




Solicitors for the Applicant:


Nil




Counsel for the Respondent:


Nil




Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) That the application is dismissed.

(2) That the applicant pay the respondent's costs set in the amount of $5,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1323 of 2003

SZAXY



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 12 June 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, who is a citizen of Bangladesh, arrived in Australia on 20 November 2001 and applied for a protection visa on 4 December 2001. On 15 January 2002 a delegate of the respondent wrote to the applicant inviting his comment on information that the delegate proposed to take into account. No response was received. The delegate refused the application. The applicant sought review by the Tribunal which held a hearing which the applicant attended.

2. The applicant claimed to fear persecution by reason of his political opinion in Bangladesh. He claimed that he was a prominent member of the Chatra League, (the student wing of the Awami League) and feared harm from members of the rival Bangladesh National Party (the BNP). He claimed that on one occasion he had been attacked at a bus stop and that he feared further harm as the BNP was now in power in Bangladesh. He claimed in the hearing that his political opponents had harassed him and tried to impede his departure from where he lived to take up employment elsewhere.

3. The Tribunal reasons for decision indicate that the Tribunal raised a number of matters with the applicant in the hearing and put to him independent country information about the situation in Bangladesh. The Tribunal accepted that the applicant was a national of Bangladesh and accepted as plausible his claim that he was active in politics as a student in the period 1994 to 1999 despite the fact that the applicant had been unable to provide documents to support such claims.

4. However, the Tribunal was not satisfied on other aspects of the applicant's credibility and on the basis of his account of his political activities it was not satisfied that he was of such prominence in his activities and positions as to be subjected to harm serious enough to amount to persecution. Nor was it satisfied that he would be so targeted on return to Bangladesh. It found that the applicant's profile as a political activist was not sufficient to lead to a real chance of his being subjected to Convention related persecution on return to Bangladesh.

5. The Tribunal did not accept his claim that BNP activists had tried to kill him when he was an executive member of the Chatra League noting the absence of any reference to this claim in his oral evidence. It found that the authorities had not, at any point, targeted the applicant in any way. His evidence that his former colleagues would prefer him to return to his political activities in Bangladesh suggested that they did not consider that he would be at risk on return. The Tribunal also considered his claim that his family had not taken well to his political activities, but found such parental disapproval would fall well short of Convention persecution.

6. The Tribunal found that the claimed attacks described by the applicant would have been criminal activities and was not satisfied that any such attacks were related to Convention grounds. It was satisfied that adequate State protection was available in relation to such attacks. The Tribunal found that the applicant's claims did not establish that he faced a real chance of serious harm or mistreatment on return because of his political opinion. In reaching this conclusion it took into account independent evidence including independent evidence as to the history of violence between supporters of rival political movements. In effect, the Tribunal concluded generally that any fears the applicant may have were not well founded.

7. The applicant filed an application in this court on 14 July 2003. It contains nine unparticularised grounds. The application stated that more details would be provided later. A written submission was filed on 5 October 2004. Despite the applicant's claim in the course of oral submissions that he prepared this submission himself, it appears to be cobbled together from a number of documents and includes material that bears no relationship at all to this particular applicant's Tribunal decision.

8. Nonetheless, I have considered all of the material before me in determining whether any jurisdictional error is apparent. The applicant contends that the Tribunal denied him procedural fairness constituting jurisdictional error. The written submissions state that the Tribunal failed to afford him an opportunity to comment on independent evidence relating to matters such as whether it is common to pay bribes to officials, that lawyers would provide a letter stating it was unsafe to return to Bangladesh for a fee and that there was a prevalence of documentary fraud in Bangladesh. This claim appears to have no relevance to the decision of the Tribunal in issue. There is nothing in the Tribunal reasons for decision to suggest that such material had any relevance to the applicant's claims or that it was relied on by the Tribunal. The applicant told the Tribunal that he wanted to provide more documents in support of his claims but had not been able to contact the relevant people in Bangladesh. This is not a case where documents provided by the applicant were rejected by the Tribunal. Indeed in the Tribunal reasons for decision the Tribunal drew no adverse inference from the applicant's inability to provide documents to support his claim to have been active in student politics. No lack of procedural fairness is established in the manner contended.

9. The Tribunal did rely on independent country information in relation to the situation in Bangladesh. There is nothing in the material before me to suggest that any notification of that material was given in writing under section 424A of the Migration Act. However, the information relied on is general country information of the nature that would come within the section 424A(3)(a), exception (NAMW v MIMIA [2004] FCAFC 264). Even if that were not the case and there was non-compliance with the strict requirements of section 424A(2) of the Act, such non-compliance would not, without more constitute jurisdictional error (NAHV v MIMIA (2003) 129 FCR 214 at [23] to [25]) and as was recognised by the Full Court in NAOA v MIMIA [2004] FCA 241 at [32], particulars of information required to be given may be given to an applicant in the course of a hearing. There is no transcript of the hearing before the court. The only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision which indicate that the Tribunal cited the relevant independent country information to the applicant in the hearing. In these circumstances it would not be appropriate to infer that the information was not raised by the Tribunal with the applicant. (Compare NAMW [120] to [122]). Insofar as the applicant raises a general argument of a lack of procedural fairness in relation to any documentation, the factual basis for such a claim is not established.

10. The applicant's written submission refers generally to the decision in Muin v RRT, Lie v RRT [2002] HCA 30. There is, however, no clarification of how such decision is relevant to the particular circumstances of the applicant's case. There is nothing in the material before me to suggest that the decision of Muin is of any relevance. The claim cannot succeed without the applicant proving facts analogous to those agreed in Muin (NADR v MIMA 2001 2002 124 FCR 465 at [25] to [26]).

11. The applicant also complained generally that the Tribunal failed to act in good faith. This allegation is unparticularised. There is nothing in the material before me to suggest that there was any lack of good faith in the decision or procedures of the Tribunal. It is submitted that the decision maker did not make an honest attempt to come to the right decision and intentionally made a wrong decision. There is nothing in the material before me to support such a claim.

12. As Counsel for the respondent pointed out in written submissions the applicant was unsuccessful because of the view the Tribunal took of the facts, in particular its finding that the applicant was not credible and his fears were not well founded. Such findings are matters of fact for the Tribunal par excellence. The Tribunal credibility findings in this case were open to it for the reasons that it gave including the country information to which it referred.

13. None of the other generally expressed but unparticularised grounds raised by the applicant reveal any jurisdictional error. Several of these grounds seek merits review. Merits review is not available in this Court.

14. The applicant complained in the course of the hearing, and repeated this claim in the written submissions, that the Tribunal failed to carry out any investigation. There is nothing in the material before me to suggest that this is a case in which the Tribunal was under any obligation to make any further inquiries or to allow further time to the applicant. It is for the applicant to make out his case. He had the opportunity to do so. In particular the Tribunal considered, according to its reasons for decision, his claim that he required time to obtain further documents to support his claims. It noted that his application had been lodged some 18 months earlier and that he had been advised in April 2002 (some 12 months prior to the Tribunal hearing) that his application has been unsuccessful. As the Tribunal indicated to him this gave him substantial time to obtain documents or other material. The Tribunal had regard to the applicant's response that his former political colleagues in Bangladesh had probably not wanted to assist him because their preference would be for him to return and resume his political activities. There is no obligation on the Tribunal in such circumstances to make further inquiries as contended.

15. The applicant contended that he had mentioned his political problems and the Tribunal did not investigate to find out if he really had that kind of a problem. I have already addressed the question of further inquiries. More generally, it is apparent from the Tribunal reasons for decision that the Tribunal did understand and consider the applicant's claims. No jurisdictional error is apparent in its decision or in the manner in which it went about its task.

16. In conclusion, no jurisdictional error is apparent and the application must be dismissed.


RECORDED : NOT TRANSCRIBED

17. The applicant has been unsuccessful. It is appropriate that as an unsuccessful applicant he meet the costs of the respondent in these proceedings. The respondent seeks that the applicant pay costs in the sum of $5,000. The applicant had an opportunity to comment on the respondent's application but did not seek to respond. I have had regard to all the circumstances, including that the applicant's case seems to have been commenced with any real regard to its merits, that in the application the grounds relied on were expressed in general terms which do not relate to the specifics of the applicant's case and that the written submissions clearly related to someone else's case, at least in part. Indeed contrary to what the applicant stated in oral submissions, it was apparent from his inability to address them, that the applicant did not in fact prepare the written submissions himself. In the particular circumstances of this case and having regard to all of these matters I consider that it is appropriate that costs should be awarded on the basis sought by the respondent.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 3 November 2004
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