MZWJO v Minister for Immigration
[2005] FMCA 1063
•7 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWJO v MINISTER FOR IMMIGRATION | [2005] FMCA 1063 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
| Migration Act 1958 (Cth) |
| Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Selvadurai v The Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 |
| Applicant: | MZWJO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 612 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 11 July 2005 |
| Date of Last Submission: | 11 July 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 7 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Strong |
| Solicitors for the Applicant: | Robert Strong |
| Counsel for the Respondent: | Mr Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The applicant’s application be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $5,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG612 of 2004
| MZWJO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The Applicant applies for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 5 April 2004 confirming a decision of a Delegate of the Minister of 7 November 2003.
The Applicant is a national of Bangladesh. The Applicant arrived in Australia on 30 August 2001 on a Student Visa. The Applicant commenced studying at a TAFE college in February 2002. The Applicant commenced a second course in February 2002. On 24 June 2003, the Applicant's re-application for his Student Visa was refused and on 27 June 2003 the Applicant submitted an application for a Protection Visa.
The Applicant does not challenge the outline of his claims as set out in the Tribunal's decision:
The Tribunal has before it the Department’s file which includes the application for a protection visa, material in Part B of the Department’s decision and written submissions in support of the application. The Tribunal also has before it material submitted in support of the application for review.
The applicant is a national of Bangladesh. He is a Muslim, aged 26 years. He arrived in Australia in August 2001 on a student visa. He completed a secondary school education in Bangladesh before furthering his studies in India, Lithuania and Australia. He worked in import/export industries for about two years in Bangladesh.
The applicant claims that he was involved in the student wing of the Awami League (AL) from 1992-1994. He claims that he held office as the general secretary of AL student wing at his college. He claims that he had a high profile on campus and more widely through, for example, his campaigning at elections.
He claims that he faced threats and harassment from thugs associated with the Bangladesh National Party (BNP) over a long period of time. He claims that he went to Lithuania for about six months in 2000 to avoid harassment, and to Thailand and The Philippines for a short while in 2001 due to a continuing fear for his safety. He claims that was assaulted by BNP opponents and that after one such occasion he was hospitalized for three days. He claims that he was arrested and detained for a week in April 2001.
The applicant gave oral evidence that he has not heard from his parents since May 2002, a couple of months after the family business was burned down. He claims that his parents required hospitalization after the fire. He said that he suspects BNP supporters were responsible for the fire and might have kidnapped his parents. He said that the fire was reported to police, but he does not know the outcome of any police investigation. He claims that before his disappearance his father warned him it would be unsafe for him to return to Bangladesh. He claims that a brother-in-law who also had a high profile member of the AL, as a former district president, has also disappeared.
He claims that a cousin who was asked about him during March 2002 was shot dead the next day. He claims that such an incident indicates BNP activists are still seeking to harm him due to his support of the AL.
The applicant also claims that two police reports have been manufactured and that he faces arrest on false charges relating to an alleged incident in March 2001. He claims that he was able to depart Bangladesh on his own passport because the charges against him were made in his local district and he left through the airport in the capital.
He claims that political, police and criminal violence remains rife in Bangladesh, but the authorities downplay its seriousness so as not to deter financial support for the economy.
The Applicant's claim for a Protection Visa, as set out in his application to the department, is in the following terms:
I left Bangladesh for two reasons.
1. I was feeling insecured and was fearful of my life which made me decided to leave the country and come to Australia as a student. (But now in Bangladesh, the situation got far worst involving my family). Please read the attachment for more information.
There does not appear to be a second reason set out on the form.
The Tribunal accepted that the Applicant was a member of AL and that he was active on the campus in his local area, as claimed by him. It also accepted that his family were well known as AL supporters and that some relatives held office within the party.
The Tribunal noted the Applicant's voluntary return to Bangladesh after periods of time in Lithuania and South East Asia together with his failure to seek asylum at that time. The Tribunal concluded that such actions were inconsistent with the existence of a continuing fear about his well being.
The Tribunal considered the Applicant's claim that he was arrested and detained in April 2001. The Tribunal noted that he had been able to depart Bangladesh on his own passport after the period of detention and concluded from his free movement that he did not remain of interest to the police. The Tribunal concluded that it was not satisfied that the Applicant was detained by reason of his political opinion during 2001 or that he was sought for arrest on any subsequent occasion for any Convention reason.
The Tribunal accepted that the Applicant's family's business burned down in 2002 and that his parents were injured. The Tribunal concluded:
While accepting that a family business was burned down during 200 2 and that the applicant’s parents were injured, the notion that the fire was deliberately lit by BNP supporters to seek political revenge remains merely speculative, notwithstanding the allegations contained in written material submitted by the applicant. The evidence before the Tribunal does not satisfy it that the applicant’s parents - let alone the applicant himself who had left Bangladesh the year beforehand - were targeted by reason of their political opinion or for any other Convention reason. Moreover, it appears that police took what action was open to them, on the basis of the evidence available to them, to track down the alleged perpetrators and to bring them to justice. In all the circumstances the Tribunal does not accept that the fire was directed against the applicant or his parents for any Convention reason . If it were, it is apparent from information cited below that they would have been able to call upon the protection of the State as, indeed, they did.
The Tribunal went on to consider other difficulties that befell the Applicant's family stating:
Similarly, while accepting that the applicant might not have had contact with his parents and a brother-in-law for some considerable time the Tribunal does not accept the notion that they were kidnapped by BNP supporters is anything other than speculation. There is no evidence to satisfy the Tribunal that relatives of the applicant were kidnapped for any Convention reason such as to expose the applicant himself to a similar fate. Moreover, information cited below indicates that BNP supporters are not targeting AL supporters in such ways and that, if they were, it would be possible to call upon the protection of the State.
Even if the Tribunal were to accept that a cousin of the applicant was shot in early 2002 it does not accept that the applicant, who left Bangladesh the previous year, was the actual target, or that the death of his cousin indicates the applicant would be targeted by reason of his political opinion. In light of the applicant’s capacity to depart Bangladesh legally his actual profile, the length of time since his prominent political activism, and the length of his absence from Bangladesh, the Tribunal does not accept that he is sought by BNP supporters or police officers or others in order to persecute him for any Convention reason It is clear that the Tribunal came to the conclusion that it did not accept that any of the specific incidents, of themselves, demonstrated that the Applicant would face a real chance of persecution, with respect to each incident it did not accept that the incidents either amounted to persecution or were for a Convention reason.
Argument was addressed to what the Tribunal meant when it referred to the issues relating to the family being "speculation", to the extent that it was suggested that those issues were a result of persecution by BMP supporters.
A fair reading of the Tribunal decision indicates that the Tribunal Member was using the term "speculation" to indicate that the interpretations of the Applicant following the events were merely a hypothesis that was open, rather than a suggestion that such an interpretation was fanciful. There was little evidence before the Tribunal to assist the Applicant in establishing the hypothesis that the difficulties for his family were as a result of persecution for a Convention reason.
At the hearing counsel for the Applicant referred to a letter (at Court Book page 40) to the Officer-in-Charge of Jamalpur Sadar Police Station which was a complaint by a BMP supporter against the Applicant. Whilst this was said to indicate the level of difficulties it does not appear to me to provide any basis for further conclusions by the Tribunal. In any event it was clearly referred to by the Tribunal in its reasons.
Another letter contained within the Court Book (Court Book page 35) described the cause of the fire as being an "electric short circuit". Another document is the fire service report setting out that the property was insured. Another document sets out that the cause of the fire was not known at the time that document was created. These documents were all before the Tribunal at the time it made its decision. The Tribunal also had before it a letter from a person described as the former President of Zilla Chchtra League which is referred to in its decision.
The Tribunal's findings with respect to each of the incidents were clearly findings of fact, based upon the evidence before the Tribunal. The findings were open to the Tribunal on the material before it. These findings are not judicially reviewable.
In addition to considering the specific incidents, the Tribunal also considered country information that was available to it with respect to Bangladesh, setting out a number of extracts from country information on pages 7 to 9 of the decision. With respect to the country information the Tribunal said:
Aforementioned information indicates that political violence is common around the time of elections in Bangladesh, but abates thereafter. Reports of violence in relation to the 2001 elections indicate that the principal targets were members of minority religious groups, mainly Hindus, and some leaders and activists with the AL. The leaders of the BNP and AL recently vowed publicly to crack down on supporters within their ranks who are prone to use violence. There is no evidence that AL supporters are being targeted for violence by the BNP supporters.
The Tribunal then went on to conclude as follows:
In considering all available material, including that submitted by the applicant, the Tribunal concludes that he would not face a real chance of persecution for any Convention reason.
The Applicant challenged the Tribunal's decision on the basis that it did not properly identify the nature of the case being put by the Applicant. In this regard it was argued that the Applicant's case was that it was only after the events that befell his family that he reached a point that he had a fear that there was a real chance of persecution for a Convention reason.
It was argued that the Tribunal had erred in its decision-making process by only considering each of the events individually, rather than considering the case as a whole and determining whether or not there was a real risk to the Applicant. In the amended application the Applicant says that the Tribunal ought to have considered the claim on the basis of the combined effect of a number of events:
(a)the burning of a factory at which a family business was conducted in early March 2002;
(b)the beating and hospitalisation of his father and an attack on the family home at about the same time;
(c)the killing of a cousin by gunshot shortly after that fire;
(d) the disappearance of his parents and his brother in law a short time later.
It was argued that the Tribunal should have considered the significance of the series of events in the context of the case, that is by reference to:
(a)his family’s prominence as members, officeholders and supporters of the Awami League, including his own activities in the student wing in the early 1990s;
(b)incidents of harassment at the hands of the police and supporters of the opposition party (BNP) experienced by him personally over a period of time up to 2001 prior to his departure from Bangladesh to Australia at the end of that year.
The Applicant relied in argument upon the comments of the High Court in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at page 575:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not “differentially at risk for a Convention reason”. Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.
…
It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar
In this case the Tribunal fairly summarised the law in this regard in the following terms:
Fourth, an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear. This adds an objective requirement that an applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
I have regard to the comments of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 that:
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.
The Tribunal ultimately concluded that the applicant would not face a real chance of persecution.
If the Tribunal were not considering the matter as a whole there would have been no purpose to be served in discussing the country information after discussing each of the individual events or allegations. It appears to me that the ultimate conclusion of the Tribunal was based upon all of the available material, after the Tribunal had had regard to the country information in addition to all of the matters that were initially discussed.
It is not inappropriate for the Tribunal to consider whether it accepts or rejects each of the individual allegations as part of the process of considering the case as a whole. Had the Tribunal accepted the veracity of one of the individual allegations this may have resulted in a finding that there was a real chance of persecution. However it did not accept that any of the incidents amounted to individual acts of persecution. Also, the Tribunal did not consider that the applicant faced a real change of persecution “when considering all available material”.
It appears to me that the Tribunal has not erred in its approach, in that it has considered each of the allegations individually as well as considering the matter as a whole. In this regard the process of the Tribunal is not dissimilar to that discussed by Mansfield J in SRFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 268 at paragraphs [55] to [57].
It was argued that the Tribunal had erred by not making specific findings with respect to some of the events, concluding that they were not able to be satisfied that they were persecution for a convention based reason. It is quite common that a decision maker may not feel the required degree of satisfaction to make a finding that particular facts have been proved, nor be sufficiently satisfied as to conclude that the claims were shown to be false. A Tribunal is not required to make a specific finding one way or another: see VSAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1270. Of course, in the context of a protection visa case the Tribunal must go on to consider the degree of risk that an applicant may face persecution in the future (see Guo’s case), however the Tribunal undertook such a step in this case. It does not appear to me that this is an error of law or an error that would amount to jurisdictional error
Further argument was directed to the Tribunal’s final finding that it did not accept that the applicant had a strong or lasting fear for his personal safety due to a significant delay in seeking a protection visa. The Tribunal stated that there was not “a satisfactory explanation” for this delay. The Tribunal referred to a decision of Heerey J in Selvadurai v The Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347. It is unfortunate that there are not more detailed reasons as to why the Tribunal did not find the applicant’s explanation satisfactory, given that many of the events that he relied upon in his application for a protection visa occurred after he held a student visa in Australia (that is the events that befell his family) and that his application for a protection visa was prompted once it became clear that his expectation to obtain a residency visa as a result of the additional points he would achieve for his educational qualifications was no longer available to him. However, the weight that the Tribunal places upon evidence is a matter for the fact finding process of the Tribunal, not judicial review. This is ultimately a finding of fact by the Tribunal that is not judicially reviewable.
In the circumstances I therefore refuse the application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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