SZNRJ v Minister for Immigration & Anor [2009] FMCA 1089 (2 November 2009)

Last Updated: 13 November 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNRJ v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1089

MIGRATION – RRT decision – Bangladeshi fearing persecution for political activities in Kuwait – Tribunal found no real chance of harm – no jurisdictional error shown – application dismissed.

Migration Act 1958 (Cth)

Applicant:

SZNRJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1433 of 2009

Judgment of:

Smith FM

Hearing date:

2 November 2009

Delivered at:

Sydney

Delivered on:

2 November 2009

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Ms B Rayment

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs in the sum of $3,800.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1433 of 2009

SZNRJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in November 2008, and on 24 December 2008 he applied for a protection visa. A typed statement attached to the application explained why he claimed to fear return to his country of nationality, Bangladesh.
2. The applicant said he had been “involved with the politics of Awami League” between 1986 and 1994, but the nature of his involvement was not described. He claimed to have been harassed by BNP leaders after they won the election in 1990, and was arrested by police and detained for seven days at a date that was not stated. He said “in the year 1994, my parents sent me to Kuwait to avoid conflict with local BNP leaders” in his village. He stayed in Kuwait, until coming to Australia.
3. In Kuwait, he claimed to have been a member of the committee of the Awami Jobo League, and was elected its senior vice president. He assisted Bangladeshis in Kuwait in that capacity, and said that in July and August 2008 “we staged demonstration...against the mistreatment and low wages of Bangladeshi workers in Kuwait”. As a result:
   • Kuwaiti and Bangladeshi governments blacklisted Jobo League leaders in Kuwait, including me, to punish the leader of that demonstration.
4. He claimed that the company where he was working as a cook advised him that it was no longer interested in renewing his working visa, which would end in February 2009. He said:
   • I was advised by Bangladeshi party friends, leaders and my family that I should not return to Bangladesh as my life will be danger and I might be arrested at Dhaka Airport. If I will arrest, the Bangladeshi police will be detained and torture me due to my involvement in Bangladeshi labours’ right demonstration in Kuwait.

He claimed to fear that he would be tortured “to find who prompted us to make violent protest in Kuwait”.

5. The applicant was interviewed by a delegate on 12 March 2009, before the delegate decided the visa application. The delegate refused the application on 13 March 2009.
6. In his statement of reasons, the delegate referred to recent country information indicating that in December 2008 the Awami League won 230 of 299 parliamentary seats in Bangladeshi elections, which were considered by international and domestic observers to be free and fair. The elections, and the peaceful transfer of power that followed, ended two years of rule by a military backed caretaker government.
7. The delegate also referred to country information indicating that there had been sporadic demonstrations by hundreds of Asian workers in Kuwait in May, July and August of 2008, and that more than 250 Bangladeshi workers had been deported on special flights following violent demonstrations. The country information suggested that the Bangladeshi embassy in Kuwait was investigating the complaints of the workers, as was the Kuwaiti government also.
8. The delegate said he had doubts about the credibility of the applicant’s claims. He was not satisfied that the applicant had established a significant political profile in Kuwait or Bangladesh. In relation to events in Kuwait, the delegate noted the applicant had been able to remain in Kuwait, and considered implausible his fear that he would be blacklisted by Bangladeshi authorities and persecuted by the Awami League ruling government. The delegate was not satisfied that the applicant faced a real chance of serious harm if he returned to Bangladesh.
9. On review, the applicant attended a hearing of the Tribunal on 19 May 2009. He presented some newspaper clippings concerning events in Kuwait, and also a letter of reference on the letterhead of the Bangladesh Awami Jubo League, Kuwait. The author of this document said:
   • He was sacked from his employment due to his involvement with Bangladeshi labours demonstration in Kuwait for better payment and salary rise in July 2008. Due to his involvement with the demonstration his employer sacked him from his Job. The Kuwait authority gave him limited time leave the Kuwait.
   • His name has been sent to the Bangladeshi authority as a member of the unlawful assembly in Kuwait Government. He might be detained at Dhaka airport due to his involvement in the demonstration where 20 to 25 Bangladeshi labourers were killed in shooting by the Kuwait Army.
10. The Tribunal made its decision on 20 May 2009. In its statement of reasons, after referring to the applicant’s claims and additional material, the Tribunal briefly referred to the applicant’s evidence at the hearing. It noted that the applicant said that he had been in a small group invited to discuss the treatment of foreign workers with the Bangladeshi Foreign Minister in the Bangladeshi Embassy in late August 2008. He said he had not been arrested during any demonstrations, nor had he been deported. He said, however, that two embassy staff members had spoken very harshly to him. The Tribunal put to him that his visits back to Bangladesh between 2003 and 2008 suggested that he had no fear of returning during that period. The Tribunal also put to the applicant that his party was “now in power.”
11. In brief findings and reasons, the Tribunal accepted “the bulk of the applicant’s claims as to his personal history”. However, it did not accept that the applicant’s behaviour prior to 2008 was consistent with his having fear of persecution in Bangladesh at these times. It said: “apart from the fact of his various visits to Bangladesh, he did not seek protection until years after these visits took place.”
12. The Tribunal accepted that the applicant was associated in a non-executive position with the Jobo League in Kuwait. It said:
    • However, this is the youth wing of the party now in government in Bangladesh and I do not accept that he would be unable to seek the party’s intervention should he be in any difficulty.
13. The Tribunal also said that it was not satisfied that the applicant would be in any difficulty arising from the protests. It referred to a number of reasons, including the applicant’s own evidence which did not suggest that he was “in bad standing with the embassy or with the government”. The Tribunal referred to the letter of reference, but said that it found it “self-serving and exaggerated. I am not prepared to give its claims regarding the danger facing the applicant on return to Bangladesh any weight.”
14. The Tribunal said that it was not satisfied that there was a real chance of the applicant suffering harm in Bangladesh amounting to persecution for reason of his real or imputed political opinion, membership of a particular social group or for any other Convention reason.
15. The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration. I have power to do this only if the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant is a refugee nor whether he should be given permission to stay in Australia.
16. The applicant’s grounds of his application appear in his original application, and he has not filed any amended application nor submissions to explain its contentions. The grounds it contains are:
    • 1. The Tribunal failed to follow the procedural fairness and natural justice.
    • 2. The Tribunal made jurisdictional error and error of law.
    • 3. The Tribunal ignored the merits of the Review Application and made the decision on imaginary presumption.
17. The applicant was unable to give any content to these grounds in his submissions to me today. Grounds 1 and 2 are of such generality that they are meaningless in the absence of explanation. For myself, I am unable to identify any arguable procedural or legal error affecting the Tribunal’s exercise of its jurisdiction.
18. I do not accept the contention in the third ground that the Tribunal “ignored the merits of the review application”. The Tribunal plainly was aware of the applicant’s claims, and considered their merits. There is nothing in the Tribunal’s discussion of the evidence which would support a contention that the Tribunal’s reasoning was unsupported in logic or on the evidence before it. I consider the conclusions drawn by the Tribunal were well open to it on that evidence.
19. For the above reasons I am not satisfied that the Tribunal’s decision is affected by any jurisdictional error. The decision is, therefore, a privative clause decision and I must dismiss the application.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 12 November 2009