SZMVN v Minister for Immigration & Anor [2009] FMCA 74 (29 January 2009)

Federal Magistrates Court of Australia

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SZMVN v Minister for Immigration & Anor [2009] FMCA 74 (29 January 2009)

Last Updated: 11 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMVN v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 74

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings.

Federal Magistrates Court Rules, r.44.12

Applicant:

SZMVN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2658 of 2008

Judgment of:

Cameron FM

Hearing date:

29 January 2009

Date of Last Submission:

29 January 2009

Delivered at:

Sydney

Delivered on:

29 January 2009

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) Pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 the application be dismissed.
(2) The applicant pay the first respondent’s costs fixed in the amount of $1,500.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2658 of 2008

SZMVN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks review of a decision of the Refugee Review Tribunal (“Tribunal”) signed on 29 August 2008. The applicant claimed that he feared persecution in Bangladesh by reason of his political association with the Chattra League, the student wing of the Awami League. He also feared the reaction of his family as he had gambled away money given to him for the purpose of tertiary education in Australia.
2. The Tribunal concluded that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
3. In his application commencing these proceedings the applicant specifies the following grounds:
   • (1) Politics
   • (2) Family
4. The matter is before the Court today for consideration of the applicant’s application that the respondents should show cause why relief should not be granted to him.
5. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Federal Magistrates Court Rules 2001, if the applicant does not have an arguable case against the respondents. The authorities show that such a dismissal will not be ordered except where the lack of a cause of action that is clearly demonstrated, the claim is groundless or there is a high degree of certainty about the outcome.
6. For the reasons which follow, the application will be dismissed.

Background facts

7. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 7 of the Tribunal’s decision (Court Book (“CB”) pages 84 – 87). Relevantly, they are in summary:
8. In a statement attached to his application for a protection visa, the applicant claimed that:
   1. he heard about Sheikh Mujibar Rahman from his father during his childhood. At age 17 he became involved in politics and was appointed the Chattra League’s General Secretary at no.27 ward in the Agrabad area;
   2. in his duties as General Secretary of the Chattra League he had had to deal with “antagonistic” situations. False cases were alleged against him and people from the BNP threatened his father to prevent his involvement in politics;
   100. his father sent him to Australia to save his life, because there was “no other way”. He also claimed he came to Australia to undertake higher education;
   4. he was admitted to an undergraduate accounting course at the University of Western Sydney but during the first semester his sister became sick so he returned to Bangladesh. On his return to Bangladesh he was threatened by the BNP and was forced to return to Australia where he completed his first semester ;
   5. he developed a serious gambling problem and was “sick mentally”, he failed on a number of occasions and was subsequently suspended from the university. He had no money to continue his studies and no longer contacted first respondent’s department or his parents; and
   6. he was ready to return to Bangladesh, but was told that the political situation was very serious and his friends who were involved in politics had been killed, harassed or were missing. He contacted his parents about returning but his father asked him not to.
9. The applicant appeared before the Tribunal on 20 August 2008 to give evidence and present arguments. At the beginning of the hearing he said that the claims in his protection visa set out earlier in these reasons were “minor” and his concern if he were to return to Bangladesh was about his family’s response as they expected him to study while in Australia. He said that:
   1. in around 2003 he developed a gambling problem, spent his tuition fees on gambling and worked a lot to recover the money; and
   2. his family did not know about his gambling until they were told by friends in 2006 and his parents told him to finish his studies or he would not be part of the family.
10. The applicant later said to the Tribunal that his protection claims were “partly true” and made the following additional allegations:
    1. he was involved in local area politics with the Chattra League in “area orientated activities” but not to a “deep extent”. He did not take part in demonstrations and his family were not aware of his political activities;
    2. in 2001, during elections, he was inside the election centre collecting votes and there were small incidents of violence between the BNP and Awami League;
    100. he fears returning to Bangladesh because his family is very upset with him as he has spent about $40,000 and, if he were to return to Bangladesh, he would not be able to survive. He would have no family support and would have to live alone;
    4. he explained the delay between his arrival in Australia on 24 May 2002 and the lodgement of his application for a protection visa on 9 April 2008 in the following way:
       1. he was in turmoil when his visa was refused in 2005, he did not know where to go or what to do and he could not return to Bangladesh;
       2. his father gave him another opportunity and he would like to get a visa; and
       3. his purpose is to finish his education in Australia. He has enquired about university enrolment but he is scared that he may lose his visa after payment and would waste money again; and
    5. he applied for the protection visa to get a chance to stay in Australia legally and to finish his education. He is in a dreadful situation with his family and is scared to return as he would not be accepted by them.

The Tribunal’s decision and reasons

11. The Tribunal found on the basis of the information available to it that it was not satisfied that the applicant has a well founded fear of persecution for a Convention reason. The Tribunal’s lack of satisfaction was based on the following findings and reasons:
    1. the Tribunal did not accept the applicant’s claim to have been involved in the Chattra League or any other actual or perceived political organisation, rejecting that he was General Secretary, that he was involved in elections in 2001, that he faced antagonistic situations, that he had false cases made against him, that he or his father were threatened by the BNP or that his friends have been harassed, killed or are missing;
    2. the Tribunal noted that:
       1. the applicant gave evidence that the claims he had made in the statement accompanying his application were “minor” and “partly true” and that, were he to return to Bangladesh, he is concerned about his family’s response because they sent him to Australia to study;
       2. when discussing his involvement in the Chattra League he said he was involved in “area orientated activities” but that he was not involved “very deeply”, or to a “deep extent”; and
       3. his responses to questions about his political activities were vague, general and lacking in important detail;
    100. the Tribunal found the six year delay between the applicant’s arrival in Australia and his application for a protection visa was substantial and that when this was considered independently and/or cumulatively with other matters advanced by the applicant, it raised serious doubts about the genuineness of his fear of persecution, the veracity of his claims and his credibility; and
    4. the Tribunal found that even if it were to accept the applicant has a gambling problem and misapplied his tuition fees, it was not satisfied that any harm he fears on this basis is Convention-related. It concluded that any harm he would suffer on this basis would be private in nature and there was nothing to suggest that he would not receive adequate state protection for any such private harm as he fears.

Proceedings in this Court

12. As already noted, the applicant pleads two purported grounds of judicial review, namely:
    • (1) Politics
    • (2) Family
13. On the face of it the application does not allege that the Tribunal erred in a way which would suggest that a jurisdictional error affected its decision. Rather, the applicant’s application appears to invite the Court to reconsider the claims which the applicant made to the Tribunal. In the short oral submissions which he made to the Court today, what the applicant said was, in essence, an invitation to the Court to reconsider the merits of his application to the Tribunal although he does concede at this point that the political issue raised by him with the Tribunal was no longer a problem because of the change in government in Bangladesh.
14. In considering these matters it has to be noted that the Court’s role is not to re-hear the application which was made to the Tribunal, but to determine whether the Tribunal’s decision should be set aside because it was affected by jurisdictional error. Consequently, the application deserves to be dismissed simply for failing to plead a recognisable claim of error on the Tribunal’s part and because it invites the Court to undertake review of the merits of the Tribunal’s decision, a thing which it is not empowered to do.
15. Notwithstanding the applicant’s oral submissions today, it might be possible that the application sought to allege that the Tribunal failed to exercise its powers properly when considering the application which was before it. Were that to be what was intended by the pleading it would be a claim which has not been made out. It is not apparent from the consideration of the Tribunal’s decision record or from anything which the applicant said today, that the Tribunal’s decision is affected by jurisdictional error.

Conclusion

16. In these circumstances, it is clear that the applicant’s application is destined to fail because it does not demonstrate an arguable case against the respondents. It must therefore be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 10 February 2009