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

SZAYJ v Minister for Immigration [2004] FMCA 918 (19 November 2004)

SZAYJ v Minister for Immigration [2004] FMCA 918 (19 November 2004)
Last Updated: 13 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAYJ v MINISTER FOR IMMIGRATION
[2004] FMCA 918




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




Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507

Muin v Refugee Review Tribunal (2002) 190 ALR 601

Applicant:
SZAYJ




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1343 of 2003




Delivered on:


19 November 2004




Delivered at:


Sydney




Hearing date:


19 November 2004




Judgment of:


Barnes FM




REPRESENTATION

Counsel for the Applicant:


Nil




Solicitors for the Applicant:


Nil




Counsel for the Respondent:


Mr D Jordan




Solicitors for the Respondent:


Blake Dawson Waldron




ORDERS

(1) That the application is dismissed.

(2) That the Applicant pay the Respondent's costs set in the amount of $3,750.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1343 of 2003

SZAYJ



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 20 June 2003, affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant is a citizen of Bangladesh. His primary claim was that he feared persecution by reason of political opinion. He claimed that he had been an active member of the Bangladesh National Party, (the BNP) and its student wing and that he feared persecution from supporters of the Awami League.

2. In his application for a protection visa he claimed that he had been falsely accused of murdering a supporter of the Awami League. In the course of the Tribunal review the applicant provided charge sheets and other documentation indicating that he had been charged with a public order offence arising from a political riot. However, he did not provide equivalent material or any documentary support in support of his claim of a false murder charge. The applicant also claimed that he was an actor and that he would be denied artistic freedom in Bangladesh as a result of the influence of Islamic fundamentalists.

3. The Tribunal reasons for decision detail the evidence given by the applicant at a hearing held by the Tribunal in February 2003. On the basis of the applicant's answers to questions during the hearing the Tribunal found the applicant was an unsatisfactory witness, particularly in relation to his claim that he was subject to a false murder charge. It bore in mind the fact that documentation had been submitted by the applicant, but that there was country information concerning fabrication of documentation in relation to Bangladesh cases which suggested the documentation should be approached with care and reserve but proceeded on the assumption that the documentation which was provided by the applicant concerning police charges laid against him was genuine. However there was no evidence to support his primary claim that he had been falsely charged with murder. Further, the applicant was unable to give the Tribunal even the name of the person he was alleged to have murdered and the Tribunal believed it reasonable that he would have sought such information through his attorney so that he could develop his defence.

4. In these circumstances the Tribunal did not accept the applicant's claim that he would be arrested on a false charge, or indeed, on any charge relating to murder, if he returned to Bangladesh. The Tribunal also considered the applicant's expressed fear that he would be arrested or detained under the Special Powers Act. It had regard to specific safeguards referred to in independent information including the fact that the detainee must be brought before a magistrate within 24 hours and freed unless continued detention is authorised. As indicated, the Tribunal accepted the documentation of charges relating to riotous behaviour, damage to property, etcetera, laid in February 2001. However it found that the applicant may be held accountable for such charges in accordance with Bangladeshi laws of general application. In view of the nature of the offence and the high level of political violence permeating Bangladeshi politics on all sides, the Tribunal did not accept that a possible prosecution for such offences constituted grounds under the Refugees Convention, as where a law of general application is enforced without any selective or discriminatory treatment it is not properly described as persecution.

5. The Tribunal had no evidence before it which would indicate the applicant was being selected for prosecution for reason of his political opinion as opposed to having been engaged in violent acts at a political event or that he faced more several punishment for reason of his political opinion. The Tribunal did not accept the applicant's claim to a well-founded fear of persecution and as he was relatively junior party official in the youth movement who had held no office since 1997, it did not accept that there was a real chance that his life was in danger.

6. The Tribunal also addressed the claim raised by the applicant's agent that the applicant feared persecution by Islamic fundamentalists if he returned and endeavoured to continue his acting career. However, on the evidence before it, the Tribunal was not convinced that the applicant saw himself as a serious actor, noting that during the hearing the applicant did not raise this issue. He had done no acting in Australia over the past 2 years and in his visa application he claimed to be in business. He did not mention that he sought to be an actor or had suffered in any way because of his alleged artistic interests. In any event, the Tribunal had seen no country information suggesting that `actor' was a career targeted by fundamentalists and the applicant did not provide any evidence to support such assertion.

7. The Tribunal also had regard to the applicant's claim that he was able to leave the country on his valid passport without difficulty. The Tribunal said that in view of the alleged charges against him it found this difficult to accept, if indeed the charges did exist and the police were serious about prosecuting him. It did not accept his claims regarding about changing his birth date on documentation to disguise his intention to leave Bangladesh and avoid the police. On the basis of these findings the Tribunal affirmed the decision of the delegate.

8. The applicant filed an application in this Court seeking review of the Tribunal decision on 15 July 2003. The application raises nine very generally expressed and unparticularised grounds. The applicant also relies on written submissions filed on 11 November 2004. He expanded on one aspect of his claims in oral submissions today.

9. The first ground raised in the application, that the Tribunal did not take into account the Court case against the applicant in Bangladesh, does not establish jurisdictional error. The Tribunal did take into account the documentation provided by the applicant in relation to the public order offence. It accepted that such documentation was genuine and considered the consequences. It did not accept the claim that he had been subject to a murder charge for the reasons which it gave which were open to it on the material before it. The complaint that the Tribunal made the decision in bad faith is not particularised but in the written submissions the applicant complains the decision was induced or affected by actual bias. There is nothing in the material before the Court to support this claim. In so far as the applicant takes issue with the Tribunal findings that does not establish either actual or apprehended bias. The applicant bears a heavy onus in demonstrating actual bias: MIMIA v Jia (2001) 205 CLR 507 and it has not been met. Nor is there any basis to conclude that the Tribunal's decision was affected by apprehended bias. The particular matters raised by the applicant do not establish bias or any other ground for review.

10. The applicant complained that the Tribunal did not accept that any misunderstanding or mistranslation was significant enough as to prevent the applicant giving evidence or understanding what was said to him. The applicant's complaint is that the interpretation in the Tribunal hearing was in some way inadequate. In oral submissions contended that the interpreter was not confident, that his case was not presented properly and that while he had explained his situation the interpreter had explained it differently. He told the court that while he could understand English, he was not particularly fluent at the time of the Tribunal hearing, that he said things in one manner - `very straight', as he put it, but the interpreter did not make it clear and tangled the words.

11. The Tribunal is obliged under section 425 of the Migration Act 1958 to invite the applicant to a hearing and give him an opportunity to present evidence and address relevant matters. However neither a breach of the provisions of the Migration Act nor any lack of procedural fairness is established by the applicant's complaints in this regard or otherwise. There is no evidence before the Court to sustain the applicant's contention that he makes today in general terms. The only evidence before the Court of the what occurred of the Tribunal hearing is the Tribunal reasons for decision. No other evidence of conduct at the hearing has been put before the Court by the applicant. He has not detailed particular complaints the interpreter. The available evidence before the Court does not suggest any difficulties concerning the quality of the interpreter were raised either during or after the hearing. I note in that respect that not only did the applicant claim in his protection visa application to be able to speak, read and write English in addition to Bengali, but also he had the assistance of a migration agent in the course of the hearing as well as an interpreter. In these circumstances there is no basis for the complaint that the applicant now makes in relation to the standard of the interpreter, whether considered in terms of natural justice or good faith.

12. In so far as the applicant complains that the Tribunal rejected his claim because his oral and written evidence was inconsistent and that this should have been put to him under section 424A of the Migration Act, this complaint, again, does not establish a jurisdictional error. It is not necessary for the Tribunal to put its thought processes to the applicant pursuant to section 424A of the Migration Act. In any event the Tribunal did not simply reject the applicant's claim on the basis of inconsistencies. No error is established in the manner contended by the applicant.

13. The other aspects of the applicant's claim in relation to bias take issue with the merits of the Tribunal decision. Merits review is not available in this Court.

14. The applicant relies without elaboration on the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. That decision is of no assistance to the applicant because the factual basis for the High Court's decision is not established in this case.

15. The general claim in the written submissions that there was a lack of procedural fairness or a breach of the rules of natural justice was expressed as the applicant not being satisfied with the decision because he was not satisfied with the interpretation. I have already indicated that the complaint in this respect is not established on the material before the Court. I note the very general and late way in which the claim is made and the material to the contrary that is before the Court.

16. I have considered all of the grounds raised and all of the matters referred to in the applicant's oral and written submissions but no jurisdictional error has been established. The Tribunal's findings were open to it on rational grounds for the reasons that it gave. As no jurisdictional error is established the application must be dismissed.

I will hear submissions in relation to costs.


RECORDED : NOT TRANSCRIBED

17. The applicant has been unsuccessful. The respondent seeks that he pay the costs of the proceedings in the sum of $3,750. There is nothing in the material before me to warrant any departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. The amount sought is at the lower end of the range and I consider it is appropriate in light of the nature of this and other similar matters.

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

Associate:

Date:
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