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MIGRATION - Review of RRT decision - where applicant claims to have a well-founded fear of persecution for the Convention reason of political opinion - where Tribunal accepted applicant's political involvement - where Tribunal did not consider that any harm/mistreatment which may be suffered would amount to persecution as defined by s.91R Migration Act - whether tribunal took into account the applicant's claims to have had false charges laid against him - where no particulars of alleged bad faith were given - whether the findings and reasons of the Tribunal's decision evidence jurisdictional error or a denial of procedural fairness - where applicant produced pro-forma submissions that did not relate to his case.

SZAYI v Minister for Immigration [2004] FMCA 896 (4 November 2004)

SZAYI v Minister for Immigration [2004] FMCA 896 (4 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAYI v MINISTER FOR IMMIGRATION
[2004] FMCA 896




MIGRATION - Review of RRT decision - where applicant claims to have a well-founded fear of persecution for the Convention reason of political opinion - where Tribunal accepted applicant's political involvement - where Tribunal did not consider that any harm/mistreatment which may be suffered would amount to persecution as defined by s.91R Migration Act - whether tribunal took into account the applicant's claims to have had false charges laid against him - where no particulars of alleged bad faith were given - whether the findings and reasons of the Tribunal's decision evidence jurisdictional error or a denial of procedural fairness - where applicant produced pro-forma submissions that did not relate to his case.




Migration Act 1958 (Cth), ss.91R, 424A, 441A

SZDFO v MIMIA [2004] FCA 1192

Applicant:
SZAYI




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG 1344 of 2003




Delivered on:


4 November 2004




Delivered at:


Sydney




Hearing date:


4 November 2004




Judgment of:


Raphael FM




REPRESENTATION

For the Applicant:


Applicant in Person


Counsel for the Respondent:
Mr A McInerney


Solicitors for the Respondent:
Sparke Helmore



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG 1344 of 2003

SZAYI



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh. He arrived in Australia on 13 December 2001. On 22 January 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 15 April 2002 a delegate of the Minister refused to grant a protection visa and on 9 May 2002 the applicant applied for review of that decision.

2. The Tribunal held a hearing into the applicant's claims and on 23 May 2003 determined to affirm the decision not to grant a protection visa. It handed down that decision on 19 June 2003. On 15 July 2003 the applicant made an application to this court seeking judicial review of that decision.

3. The applicant told the delegate and the Tribunal that his claim to have a well-founded fear of persecution for the Convention reason of political opinion arose out of his association with the Awami League which he joined as a student in about 1993. He was elected General Secretary of the college committee of the Chattra League and he led demonstrations against the BNP on their behalf.

4. In 1994 he was elected Vice President of the Naria Thana Chattra League. He told the Tribunal that in 1994 he was forced to leave the college at which he was studying because of false cases that had been filed against him and in 1995 he felt obliged to leave the country. He claimed that having sent some money to an Awami League politician in 1996 he had been targeted ever since by the BNP.

5. The applicant lived for a number of years in Saipan. He appears to have had a good job there but he returned to Bangladesh in November 2001 because his mother was ill. His mother died in December 2001 and in the same month he married. He told the Department that in December 2001 he had been attacked by BNP supporters shortly after the election in which that party was returned to power with a substantial majority.

6. The applicant then left Bangladesh and came to Australia. He claims that if he was returned to Pakistan he would suffer persecution as a result of his past political association and that he would be made to answer the false charges against him and imprisoned.

7. The Tribunal considered the claims made by the applicant and put to him certain country information concerning the situation in Bangladesh and the status of the judicial system there. At [CB 261] it says of the applicant:

"He gave frank and responsive evidence at his hearing and impressed the Tribunal with the resourcefulness with which he has sought new opportunities in Saipan and Australia."

8. The Tribunal accepted the history of the applicant's political involvement and the occurrences which took place but it came to the conclusion that it was not satisfied on the basis of the activities he described in 1993 and 1994 that he was a person of such political prominence as to be subjected to harm or mistreatment at the levels described in s.91R of the Migration Act as examples of persecution or that he would be so targeted on his return to Bangladesh.

9. The Tribunal accepted that he had a fear despite the considerable time that had now passed since the period in which he claimed to have been politically active that he may be targeted by activists opposed to the Awami League on his return but the Tribunal felt that the claim was not well-founded in view of his modest political profile in what it described as the "now fairly distant past".

10. The Tribunal also accepted that the applicant may have been targeted and assaulted by Awami League supporters when he returned to the country in 2001 but it relied upon independent country information which it had put to the applicant to conclude that these occurrences were not likely to recur and, therefore, the applicant would not have a well-founded fear of persecution if he returned on that ground.

11. The Tribunal then considered the question of the false charges. It accepted that it was possible that false charges had been laid against the applicant in 1995 but noted that he was able to leave and re-enter Bangladesh in 1995 and 2001 on his own passport without experiencing any attempt by the authorities to limit his travel or further investigate the charges. The applicant told the Tribunal that he had not been placed into custody in relation to the charges and so the Tribunal, having considered the present situation relating to the status of the judiciary in Bangladesh and putting the same to the applicant, concluded that the authorities were not necessarily likely at any time to pursue those charges which were laid with such transparently political motives. The Tribunal took the view that even if that did occur the courts would deal with them appropriately. The Tribunal felt that any investigation:

"would not amount to persecution but would form part of investigation and enforcement under a law of general application which could be selectively or discriminately applied for a Convention reason." [CB 262]

12. The Tribunal also considered a claim made by the applicant's adviser on his behalf that that was a general problem facing persons of a secular viewpoint arising out of the ideology of the current BNP led coalition which included Islamic parties. At [CB 263] the Tribunal said:

"The Tribunal drew the applicant's attention at hearing to independent country evidence on this point ...

The Tribunal finds that there is nothing in this material to add to the applicant's claims to be at risk of Convention persecution."

13. Finally, the Tribunal considered whether the applicant was likely to engage in future political activity upon his return to Bangladesh and whether that activity was likely to cause him the type of persecution which the Act seeks to protect persons against. Again at [CB 263] the Tribunal said:

"The Tribunal considers that the applicant is likely to engage in further political activity on his return in support of the Awami League and its principles. The Tribunal considers that it would be open to the applicant to engage in such activity without putting himself into situations where he would risk being involved in violence: for example, he could engage in public debate and demonstrations but exercise prudence about situations about which violence was likely or appeared imminent. The Tribunal is satisfied, taking account of its findings about his previous experience and conduct, that the applicant will exercise prudence in engaging in such activities and that it would be possible for him, like other Bangladeshis, to exercise his right to express his political opinion and assist those he supports to pursue their political objectives without facing a real chance of experiencing politically motivated violence at the levels described in s.91R of the Act as examples of persecution."

14. In his application to this court the applicant makes nine claims. The first argues that the Tribunal did not take into account the court case against him but this is clearly not the case and it is a groundless claim. Grounds 2, 6 and 9 are grounds relating to the bad faith of the Tribunal. No particulars as required under order 54B rule 2 of the Federal Court Rules or the equivalent Federal Magistrates Court Rules were provided and nothing which the applicant said to me today indicated he was pursuing this claim.

15. Ground 3 indicates that the Tribunal deprived the applicant of natural justice but subject to what I will have to say further concerning his outline of submissions filed on 30 October 2004 the applicant said nothing about this either. The other grounds appear to be complaints about the process of fact finding with which the Tribunal was engaged. As such, they would appear to require a merits review which this court is unable to give.

16. Before me today the applicant said that the Tribunal had handed down a claim without justifying it and that he did not agree with paragraphs 29 to 40 of the decision. I interpret what he said to mean that he did not believe that the decision of the Tribunal followed from the evidence which he had given to it and for that reason he wanted his claims to be re-investigated and re-considered. In particular he wanted the Tribunal to investigate the police station at which the charges had been laid against him.

17. Most applicants who appear before this court do not agree with the decision of the Tribunal. If they did they would not be here but disagreement in itself is not a ground for review.

18. The document filed on 13 October 2004 calls itself an Outline of the Applicant's Submissions. It commences with what it describes as particulars of actual bias and then proceeds to inform:

"The grounds and relief is very much similar with High Court judgment Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal [2002] HCA 30."

19. That case was not concerned with actual bias but with failure to provide procedural fairness. The document then continues with a page relating to the privative clause and states:

"This is very easy to find the RRT decision dated 28 March 2003 in my refugee application."

20. The RRT decision in this case was not made on 28 March 2003. I could only assume that this paragraph, indeed the whole document, comes from some standard form made available to the applicant by persons unknown. The next 15 pages of the document are in italics. It relates to the situation in Bangladesh and, as such, would appear to be a factual argument that the court cannot take into account at this stage. On page 18 of the submissions another page which would appear to relate to some other case entirely has been inserted. The page commences with the words:

"As to the second argument, Ryan and Finkelstein JJ, NARV v observe that the rules of natural justice require the Tribunal to give an applicant before it an opportunity to deal with any adverse information that is credible, relevant and significant to the Tribunal's decision..."

21. The document then goes on to deal with ss. 441A and 424A of the Migration Act before ending at page 21 with a peroration concerning the High Court's views that people whose fundamental rights are at stake are ordinarily entitled to expect more than good faith.

22. I have gone into some detail about this document because it is perhaps time that something is said about the pro forma documents that find their way into this court on behalf of applicants. There is nothing inappropriate in pro forma documents per se, where would the legal profession be without the Encyclopaedia of Forms and Precedents, Atkins' court forms, Leslie's equity practice or Bullen and Leeks Precedents of Pleadings. But these documents must have some factual connection with the case that is being made. It is impossible to build a palace upon foundations of sand, and that is what is being attempted frequently by persons who produce these submissions.

23. It may well be that a time will have to come when applicants will be asked whether they rely on such submissions solely as their grounds for review and if they agree then the review will be refused on the basis that the submissions themselves contain no relevant information concerning their claims.

24. I have not taken that course in this case because the applicant spoke to me and gave me some oral indication of where he believed the Tribunal was wrong. He did not appear to rely in any way on this document. However, the fact that he produced it meant that the respondent would have had to have considered it and it should sound against him in costs.

25. The applicant has not satisfied me that any of the grounds which he set out in his original application have been made out. It is perhaps worthwhile repeating to him what Allsop J said concerning the role of the court in SZDFO v MIMIA [2004] FCA 1192 at [8]-[12]:

"[8] The structure of the legislation, being the Migration Act and in particular s.474 of that Act, as interpreted by the High Court in Plaintiff S157 of 2002 v The Commonwealth (2003) 211 CLR 476 only entitles the Federal Magistrates Court or this Court to interfere with what the Tribunal has done if there is found to be what is referred to as jurisdictional error.

[9] What that means is as follows: the error to be demonstrated as committed by the Tribunal must be one that reveals a failure to carry out its statutory task. That is, it must be shown that the statutory authority and duties placed upon the Tribunal have not been complied with. Examples of that kind of error are as follows: that the Tribunal has misunderstood the correct question that it should be dealing with; that the Tribunal has failed to deal with the claims as they are put by the applicant; that the Tribunal has failed to afford the applicant procedural fairness in the way it dealt with the matter; that the Tribunal failed to take into account a consideration the law made compulsory to consider; and that the Tribunal took into account a consideration that the law made compulsory not to consider.

[10] These are the main examples. Conformably with High Court authority, factual error is rarely reflective of jurisdictional error...

...

[12] It should be plain, I hope, from what I have said that it is simply outside my statutory authority and judicial authority to make up my own mind as to whether Australia owes the appellant protection obligations. The only task I am permitted today is to seek to identify whether the learned Federal Magistrate committed any reviewable error in his approach to the dismissal of the application made in respect of the Tribunal's decision."

26. As the applicant has not demonstrated to my satisfaction any jurisdictional error into which the Tribunal has fallen, I am obliged to dismiss his application. Although this was otherwise a fairly simple case in which the Tribunal's decision was clearly articulated, thorough and correct, the applicant must bear the costs of putting the Minister to respond to allegations which were not properly particularised and to a document which appears to have had no bearing whatsoever upon the case being brought.

27. I order that the applicant pay the respondent's costs, which I assess in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 26 November 2004
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