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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.

SZBEO v Minister for Immigration [2004] FMCA 885 (6 December 2004)

SZBEO v Minister for Immigration [2004] FMCA 885 (6 December 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBEO v MINISTER FOR IMMIGRATION
[2004] FMCA 885




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.




Migration Act 1958 (Cth), ss.424A(1), 424A, 474

Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1

Craig v South Australia (1994) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

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

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158

NAMB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 718

Yo Han Chung v University of Sydney & Ors [2002] FCA 186

NAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1137

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6

Applicant:
SZBEO




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1596 of 2003




Delivered on:


6 December 2004




Delivered at:


Sydney




Hearing date:


19 November 2004




Judgment of:


Lloyd-Jones FM



REPRESENTATION

The applicant appeared in person with the assistance of a Bengali interpreter.

Solicitors for the Respondent:


Sparke Helmore




ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the Minister's costs and disbursements of and incidental to the application, fixed in an amount of $5,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1596 of 2003

SZBEO



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for a review of the decision of the Refugee Review Tribunal ("the Tribunal") made on 30 June 2003 and handed down on 29 July 2003, affirming a decision of the delegate of the respondent ("the delegate") made on 12 March 2002 to refuse to grant the applicant a protection visa.

Background

2. The applicant, who claimed to be a citizen of Bangladesh, was born on 19 October 1970 in Dhaka. He arrived in Australia on 1 October 2001 and on 26 October 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth) ("the Act"). On 12 March 2002 the delegate refused to grant a protection visa and on 20 March 2002 the applicant applied for a review of that decision.

3. The applicant claimed to be a Muslim and attended school and college in Mymensingh. His father and sister live in Bangladesh. The applicant's application stated he had never married however, at the hearing, he claimed he had recently married by telephone. The applicant gave his occupation as &q;
uot;business" but gave no history of employment. The applicant arrived in Australia on 1 October 2001 travelling on a Bangladeshi passport and entered Australia on a visitor's visa issued in Paris on 27 September 2001.

4. The applicant claimed that his family were involved in politics and were opposed to the policies of the Bangladesh Nationalist Party ("BNP"). He was also involved in the Chattra League at college and participated in political activities in Dhaka and Daukandi.

5. The applicant claimed he formed a close association with the Chattra League leaders and became involved in the Daukandi politics, organising political meetings and processions against the BNP. In 1990 the applicant claimed he was appointed as President of the Chattra League for Daukandi Thana Committee, organising the student wing of the party at political rallies. The applicant claimed that in 1995 he became a Central Chattra League committee member and was well known to members of the opposing student wing of the BNP (Chattra Dal) who started to harass him. The Chattra Dahl leaders threatened him and his business if he continued with Chattra League politics. In 1996 he became the chief election agent for the local Awami League candidate.

6. In September 1996 the applicant claimed he became involved in a disturbance with BNP supporters where bombs were thrown. He claimed that the BNP supporters filed cases against him and threatened his family and business. The incident was reported to police but they did nothing. Due to the continued disturbances during 1996, the applicant sought refuge in India, Malaysia, Italy, Britain, Ireland and Indonesia. During the times he was in Bangladesh, the applicant went into hiding as his Party was unable to protect him from harm.

7. The applicant gave oral evidence to the Tribunal on 16 June 2003 and was assisted at the hearing by a Bengali interpreter.

The Tribunal's findings and reasons

8. The Tribunal accepted that the applicant was a supporter and member of the Awami League and the Chattra League. However, the Tribunal was not satisfied that the applicant was an active member of either League after 1996 and was not satisfied that the applicant had ever been an office bearer of the Chattra League. The specific findings of the Tribunal were as follows:

a) The applicant's evidence was "confused and lacking in consistency" (Court Book p.98.8) ("CB").

b) In light of the applicant's evidence and relevant country information, the Tribunal gave little weight to the documents he submitted (CB p.99.6).

c) Whilst accepting that the applicant may have taken an active part in local politics in Daukandi prior to 1996, the Tribunal found he had had no political involvement with either League since 1996 (CB p.99.7).

d) The Tribunal was satisfied that the applicant had withdrawn from politics and had concentrated on his business and overseas trips since 1996 (CB p.99.8).

e) The Tribunal was not satisfied that the sabotage that took place at the applicant's place of business was related to his political beliefs (CB p.99.9).

f) The applicant did not make any specific claims at the hearing that he had been charged with false charges and that his concern that false charges could be lodged against him was based on "speculation" (CB p.100.2).

g) The Tribunal also relied on independent country information regarding the political situation in Bangladesh to find that there was no evidence that the members of the Awami League were at risk of prosecution under the BNP government since October 2001 (CB p.101.5). Accordingly, it was not satisfied that the applicant would face a real chance of persecution now or in the reasonably foreseeable future if he returned to Bangladesh.

h) The Tribunal did not accept that the applicant was a person to whom Australia owed protective obligations (CB p.101.6).

Application for review of the Tribunal's decision

9. On 13 August 2003 the applicant filed an application for review under s.39B of the Judiciary Act 1903. On 22 October 2003 the applicant attended a directions hearing and agreed to Short Minutes of Order by consent. The applicant agreed to file and serve an amended and fully particularised application together with an affidavit in support of any evidence upon which he proposed to rely at the substantive hearing. The applicant provided an amended application dated 15 December 2003 which contained the following grounds:

1. The Tribunal exceeded its jurisdiction, in failing to accord the Applicant procedural fairness, as required under section 424A(1) of the Migration Act 1958.

2. The RRT did not complete the exercise of its jurisdiction as it made no findings as to what sociopolitical and religious changes might occur in Bangladesh in the reasonably foreseeable future and it thus failed to assess whether the applicant's fears of being persecuted for being a member of a main opposition Awami league student wing were well founded in the reasonably foreseeable future.

3. The RRT's decision was not based upon circumstances giving a rational foundation for the belief entertained as the RRT's findings, when applied to the applicable criteria, meant that the RRT should have been satisfied that the applicant had met those criteria.

4. The Tribunal did not provide the applicant with particulars of information, which formed part of the reason of the Tribunal's decision, namely, that violence against the Awami League under the present ruling government in Bangladesh had subsided, and that information was not based on the independent media.

5. The Tribunal did not put to the applicant its doubts about documents containing information personal to the applicant from different sources of Bangladesh, and those doubts formed part of the reason for the Tribunal's decision.

The law

10. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia ("S157/2002") and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 ("S134/2002"), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].

11. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal's power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

12. The applicant appeared self represented with the aid of a Bengali interpreter. The applicant attended a directions hearing on 22 October 2003 and by Short Minutes of Order at that time agreed to complete certain procedural steps prior to the substantive hearing. The applicant filed an amended application as detailed above in paragraph 9. However, the applicant did not file and serve any written submissions prior to the hearing. When the applicant was invited to make oral submissions at the hearing, these were limited to comments on the difficulty he currently faced concerning an application for a temporary visa to visit his sick father in India, a matter that was not subject to the substantive hearing. When asked if he wished to make any oral submissions in support of his amended application, the applicant indicated he had no material to present and that he would rely upon his amended application.

13. Miss J Bautista, solicitor appearing for the respondent, filed written submissions prior to the hearing. In respect of grounds 1 and 4 , it was submitted that the amended applications asserts that the Tribunal failed to accord procedural fairness to the applicant pursuant to s.424A(1) of the Act as it did not provide him with particulars of the information which formed part of the reasoning of the Tribunal's decision. To the extent that the Tribunal relied on independent country information to the effect that violence against members of the Awami League had subsided under the present ruling government in Bangladesh, such information fell within the exclusion of s.424A(3)(a): see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW per Merkel and Heeley JJ at [127]-[139]. It was submitted that it was clear from the Tribunal decision that the relevant independent country information was discussed with the applicant at the Tribunal hearing (CB p.89.4).

14. It was submitted that the delegate of the respondent had relied upon the same independent country information to the effect that:

"... there is no evidence that the current government is pursuing a campaign of persecution of its opponents. Criminal violence is rampant in Bangladesh. Whilst this violence may be perpetrated by followers of any of the political parties, and therefore involve BNP supporters. There is no evidence of the current BNP government specifically targeting Awami League members." (CB 40.6)

" ... and that information was sent to the applicant at his home address." (CB 34-35)

15. It was submitted that even if the Court were to find that there was a breach of s.424A of the Act, a breach of that section did not result in any practical injustice in the circumstances of the case, and relief should be refused on discretionary grounds: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs per Kiefel, Weinberg and Stone JJ at [56]-[57]; NAMB v Minister for Immigration and Multicultural and Indigenous Affairs per Jacobsen J at [80].

16. In respect of ground 2, which claims there was a lack of finding as to the sociopolitical and religious changes in Bangladesh, it was submitted that to the extent that this claim seeks merits review, merits review is not available in the Court. It is submitted that, in any event, this allegation is incorrect, as the Tribunal did make relevant findings relating to the political situation in Bangladesh as well as the status of the Awami League in Bangladesh. The Tribunal concluded that:

"... if the applicant returned to Bangladesh now or in the reasonably foreseeable future, the Tribunal is not satisfied that he would face a real chance of persecution for reasons of his political opinion" (CB p.101.3)

17. Ground 3 claims, in essence, that the decision was not based upon circumstances giving a rational foundation. It was submitted, to the extent that this ground seeks merits review, this does not establish a ground of review. Furthermore, no particulars were provided in support of this ground and no error was revealed.

18. In ground 5 the applicant claims that the Tribunal failed to put to the applicant its doubts about his documents. It was submitted that the applicant alleged that the Tribunal did not put to him its doubts about documents he presented, and those doubts formed part of the reasoning of the Tribunal's decision. It was submitted that it was apparent from its decision that the Tribunal made it clear to the applicant at the hearing that it had concerns about his documents and put those concerns "in the ring" (CB pp.88.10-89.1). It was submitted that no particulars were provided in support of this ground and no error was revealed.

Conclusion

19. The applicant in these proceedings was self represented. He provided no written submissions and his oral submissions from the bar table concerned an issue that was not before this Court and were otherwise nothing more than a statement of his particular hardship and desire to remain in Australia.

20. The grounds in the applicant's amended application are vague and unparticularised. However, where an applicant is self represented, the Court must independently determine whether any arguable case based upon the material could have been made out: Yo Han Chung v University of Sydney & Ors.

21. I am satisfied that a legal adviser was allocated to the applicant under the RRT Review Legal Advice Scheme (NSW) but the applicant failed to avail himself of that service. I am also satisfied that the Advice Scheme advised the applicant of the allocated adviser and his contact details. This information was forwarded to the same postal address that all other correspondence had been forwarded to the applicant. The respondent solicitors also provided the applicant with a copy of the Court Book and informed him that a copy had also been forwarded to his allocated Legal Advice Scheme member. Despite these various steps, the applicant still presented himself to the Court completely unprepared to pursue his application seeking a review of the Tribunal's decision. The applicant was informed and given every opportunity to make out his case.

22. I accept the approach taken by Miss Bautista and have reproduced her submissions, which I believe assist me in the resolution of this matter. The applicant's individual grounds are general and in many respects vague and unparticularised. However, I will deal with the five grounds in an alternative way to ensure that each issue raised is correctly addressed and I satisfy my obligation as in the authority of Yo Han Chung v University of Sydney & Ors.

23. Ground 1 pleads a breach of s.424A(1) of the Act. The applicant does not identify any material that the Tribunal failed to provide. Consequently, to determine whether the Tribunal was in breach, I only have its decision available to me to make that determination. In the Tribunal decision under the heading of "Documents", the Tribunal lists and in part reproduces the material that it had before it (CB pp.89-97). The Tribunal also states in its decision that it had before it the Departmental files, which included the protection visa application and the delegate's decision records. The Tribunal also had regard to the material referred to in the delegate's decision and other material available to it from a range of sources. On a fair reading of the decision, the conclusions drawn are those that could be fairly distilled from the country information that is reproduced within the decision. Without any particularisation identifying material that was not disclosed or discussed the ground cannot be sustained.

24. Ground 2 alleges that the Tribunal decision lacks findings as to the sociopolitical and religious changes in Bangladesh. However, in the Tribunal's decision a substantial part of its "Findings and Reasons" address this particular issue. There is no evidence presented that these findings were wrong or substantially wrong as this would raise a different avenue of enquiry. In the absence of particularisation and based purely on the face of the document, ground 2 cannot be sustained.

25. Ground 3 suggests that the Tribunal's decision was not based upon circumstances giving a rational foundation. Without particularisation, it is difficult to clearly identify what the applicant is claiming. If the suggestion is that the Tribunal rejected evidence before it without fully explaining that rejection, that does not constitute an error. Alternatively, the ground could be aimed at a merits review: NAQS v Minister for Immigration & Multicultural & Indigenous Affairs per Hill J at 39:

"While it can be said that failure on the part of the Tribunal to take any account of all the relevant material might constitute jurisdictional error, one has to be careful to distinguish that from matters of fact finding. It is open to the Tribunal to accept or reject evidence before it. It is neither bound to give reasons for its rejection nor indeed refer to the material it rejects. This submission really seeks to prevail upon this court to entertain a merits review and does not demonstrate jurisdictional error."

26. If the underlying intention of this ground is to take issue with the merits of the Tribunal's decision, then to the extent that the applicant seeks a merits review and as such a merits review is not available in this Court: Minister v Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at [24]:

" ... 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."

" ... 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."

27. In respect of Ground 4, the issue of country information and the underlying breach of s.424A are raised again. No new grounds are raised here especially as no particularisation is available in support of the pleaded ground.

28. Ground 5 claims the failure of the Tribunal to put to the applicant its doubts about his documentation. This was first raised by the Tribunal in its letter to the applicant on 10 January 2003 where it indicated that it had considered the information before it in relation to the applicant's application but was unable to make a favourable decision on that information alone. The Tribunal then extended an invitation to the applicant to attend a hearing to give oral evidence and present arguments in support of his claims. Therefore, the applicant was on notice that the contents of a number of documents he had supplied raised doubts in the mind of the Tribunal as they had indicated they were not satisfied with the documents and were seeking the applicant's attendance to discuss the content of that material.

29. In the Tribunal's decision, it addresses both the hearing and the documents and quite clearly indicates to the applicant it is not satisfied with some of the applicant's documentation, reasons are raised with the applicant inviting his response. If there are other documents that fall into this category the applicant has not identified them and the ground cannot be sustained.

30. As the grounds in the application are general and without particularisation, I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. The applicant's claim should be dismissed.

31. I am satisfied that an order for costs should be made in this matter. I order the applicant to pay the respondent's costs and disbursements of and incidental to the application.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: Menna McMullan

Date: 6 December 2004
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