NAPD v Minister for Immigration
[2004] FMCA 106
•3 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAPD v MINISTER FOR IMMIGRATION | [2004] FMCA 106 |
| MIGRATION –Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – whether RRT erred in failing to speculate about a possible return to power by the Awami League and a possible resumption of “Operation Clean Heart” – whether the RRT failed to consider an element of the applicant’s claims – whether the RRT ignored a relevant consideration in relation to a credibility finding concerning an alleged charge and conviction for murder – no reviewable error found – application dismissed. |
Migration Act 1958 (Cth)
Kalala v Minister for Immigration (2001) 114 FCR 212
Minister for Immigration v Yusuf (2001) 206 CLR 323
NAJK v Minister for Immigration [2003] FMCA 427
Singh v Minister for Immigration (2001) 109 FCR 18
| Applicant: | NAPD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1245 of 2003 |
| Delivered on: | 3 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 3 March 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondent: | Ms R Pepper |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1245 of 2003
| NAPD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refuge Review Tribunal (“the RRT”) made on 26 March 2003 and handed down on 16 April 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant made claims of political persecution in Bangladesh. The factual background is set out in paragraphs 2 to 5 of written submissions prepared on behalf of the Minister by Ms Pepper. I accept those paragraphs for the purposes of this judgment:
The applicant, who is Bangladeshi, arrived unlawfully in Australia in or about October 2000 travelling on his own Bangladeshi passport.
On 15 November 2000 he lodged an application for a protection visa (XA) under the Migration Act 1958 (Cth) (“the Migration Act”) with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) (court book, pages 14-25). In his application the applicant claimed he could not return to Bangladesh because he would be persecuted because:
b)his father had been a freedom fighter;
c)he had been a BNP supporter; and
d)in 1999 he was sentenced in Bangladesh in absentia for the murder of a person which he did not commit.
However, in the intervening period since the applicant had fled Bangladesh the BNP had become the ruling party.
Further, the applicant’s passport revealed that since his alleged conviction he had returned on two occasions to Bangladesh. In response, the applicant asserts that the exit-entry stamps in his passport are not genuine and that he had never travelled outside Bangladesh prior to coming to Australia.
The matter proceeded today on the basis of an amended application filed in court by leave today. By that amended application the applicant advances three grounds of review, those are:
(1)the RRT found that it was not satisfied that the applicant faces any risk of persecution because of his past opposition to the Awami League. The RRT fell into jurisdictional error in making this finding;
(2)the RRT found that it was not satisfied that there was a real chance that the applicant would be harmed by the BNP government. The RRT fell into jurisdictional error in making this finding; and
(3)the RRT found that it was not satisfied that the applicant had been charged or convicted of a serious offence and sentenced in absentia. The applicant says that the RRT fell into jurisdictional error in making this finding.
Mr Zipser prepared written submissions in support of these grounds of review. The first ground is dealt with in paragraphs 5 through to 10 of Mr Zipser's written submissions:
The RRT found at page 103.7 of the court book:
There is now a BNP led government and the Awami League are in opposition. I am not satisfied that the applicant faces any risk of persecution because of his past opposition to the Awami League.
In making this finding, the RRT gave no consideration to when the next national election in Bangladesh is likely to be held, whether the Awami League might be returned to power and, if so, whether the Awami League might recommence persecuting the applicant on the basis of his past political activity. For this reason, the RRT failed to properly carry out its task of assessing whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future if required to return to Bangladesh.
In Kalala v Minister for Immigration (2001) 114 FCR 212 North and Madgwick JJ stated at [4] and [6]:
It has been held that if there is a real chance that an applicant will be persecuted for a Convention reason, his or her fear of such persecution is to be regarded as well-founded, notwithstanding that the decision-maker is not affirmatively satisfied that such persecution would occur … [T]he degree of probability, even if well below 50%, that the subject events occurred … needs to be assessed to determine whether an applicant has a well-founded fear of persecution.
This statement emphasises the need for the RRT to consider the degree of probability that the Awami League will return to power in the reasonably foreseeable future, and emphasises the point that its failure to have done so constitutes jurisdictional error.
The applicant did not explicitly claim at the hearing before the RRT that he feared that the Awami League might return to power and re-commence persecuting him. However, in his protection visa application he clearly claimed fear of persecution by the Awami League. In Singh v Minister for Immigration (2001) 109 FCR 18 at [49] Merkel J stated:
An inquisitorial body such as the RRT is under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. In arriving at its decision under the Act the RRT is required to deal with the case raised by the material or evidence before it, which must be taken to mean the evidence and material which it accepts, or does not reject.
On the basis of this principle, the RRT, in considering whether the applicant faced a risk of persecution because of his past opposition to the Awami League, had an obligation to consider the possibility that the Awami League might return to power in Bangladesh in the reasonably foreseeable future.
In substance, this is an assertion that the RRT erred in not speculating about the possibility that the Awami League might in the future be re‑elected to government and might resume its asserted persecution of the applicant. The RRT had placed emphasis on the fact that the applicant's own party, the BNP had been elected to government.
I accept that, in some circumstances, there may be an obligation upon the RRT to speculate as to possible future events. If there was material before the RRT indicating that an election was imminent and that the Awami League was contesting that election, the RRT might need to consider the possible outcome of that election.
This decision was made in 2003, some two years after a Bangladesh national election which the BNP apparently won in a landslide. In the circumstances of this matter, where nothing was put before the RRT indicating an imminent election or a real possibility that the Awami League may be re-elected to government, I reject the contention that there was an obligation upon the RRT to speculate about a possible future election outcome. I queried with Mr Zipser whether the issue had been considered previously. He was not certain, but recalled that he had argued the issue previously before Federal Magistrate Raphael, possibly in the case of NAJK v Minister for Immigration [2003] FMCA 427 and he was, in that case, unsuccessful. It appears that there is no authority contrary to the conclusion that I have reached.
The second ground concerns the applicant's assertion that he would be harmed by elements of the present BNP government. This is dealt with in paragraphs 11 to 15 of Mr Zipser's written submissions:
The RRT found at page 104.1 of the court book:
While it is true that some BNP activities were arrested in Operation Clean Heart that operation is at an end. The applicant offered no persuasive reason why his former allies in the BNP would wish to harm him. I am not satisfied that there is a real chance that the applicant would be harmed by the BNP government.
The applicant has two complaints about this passage.
First, the RRT failed to consider the possibility that Operation Clean Heart might be repeated, or that a similar operation might take place in the reasonably foreseeable future.
Second, contrary to the RRT’s findings, the applicant did offer persuasive reasons why his former allies in the BNP would wish to harm him. The reasons are:
a)the applicant explained that: “[B]ecause he was away for some time the BNP will have a negative view of him. His escape from Bangladesh … will be seen as selfish by other BNP activists.” (court book, page 97.2);
b)the applicant’s adviser submitted that the applicant “will face discrimination because his father was a freedom fighter”. (court book, page 97.9).
The RRT’s failure to address these explanations in the section of its decision titled “Findings” indicates that the RRT has ignored the claims, giving rise to jurisdictional error: see Minister for Immigration v Yusuf (2001) 206 CLR 323 at [69] and [82].
There are two issues raised in those submissions. The first is that the RRT allegedly erred in failing to speculate about the possibility of “Operation Clean Heart” being resumed; the second is that the RRT allegedly erred in failing to give consideration to the elements of the applicant's claim set out in paragraph 14 of Mr Zipser's submissions.
I reject the first contention for the same reasons as I reject the contention that the RRT erred in failing to speculate about a possible future election outcome. There was no obligation on the RRT to speculate about the possible resumption of “Operation Clean”, in the absence of material before the RRT to cause such speculation to be necessary. There was no such material.
As to the alleged failure to consider the applicant’s claim of harm at the hands of the BNP, the RRT’s finding on this part of the claim is dealt with on pages 103 and 104 of the court book. On page 103 of the court book the presiding member said:
The Applicant said that he expects that the BNP would punish him if he returned to Bangladesh. He says that when he was an activist the BNP was different to now. He says that some BNP supporters have been arrested and attacked. His father had been a freedom fighter but freedom fighters were not being given government preferment now.
The Applicant says that because he was away for some time the BNP will have a negative view of him. His escape from Bangladesh, while necessary, will be seen as selfish by other BNP activists.
It follows that the presiding member was certainly aware of and understood the applicant's claims. The presiding member went on to say:
If the Applicant was involved in political activity in Bangladesh there is insufficient reliable evidence on which to conclude that such activity would place him at any risk of persecution in the future. I note that the party he claims to support is now in power, albeit in coalition. While it is true that some BNP activists were arrested in Operation Clean Heart that operation is at an end. The Applicant offered no persuasive reason why his former allies in the BNP would wish to harm him.
I am not satisfied that there is a real chance that the applicant would be harmed by the BNP government.
Contrary to Mr Zipser's submissions, in my view, on a fair reading of the presiding member's reasons, the presiding member did consider the applicant's claims about the BNP having a negative view of him and the claim about his father being a freedom fighter. What the relevance was of the applicant's father being a freedom fighter was is not clear to me. Whatever the relevance of it may have been, both claims were clearly rejected by the presiding member. I find that there was no failure on the part of the RRT to consider these claims made by the applicant.
The third argument advanced by the applicant has some more substance. This is set out in paragraphs 16 through to 19 of Mr Zipser's written submissions:
The RRT found at page 104.6 of the court book:
I consider that it is unlikely that someone charged with such serious offences would be able to leave and re-enter Bangladesh on their own passport. I also consider it unlikely that the applicant would have returned to Bangladesh if facing such serious charges.
The RRT, in making this finding, failed to consider the distinction between being charged with, and being convicted of, the serious offence, and the fact that the applicant was on bail following being charged. In relation to the point about bail:
a)the applicant gave evidence that he was charged with the serious offence in late 1999;
b)the applicant continued to live at his residential address in Bangladesh until March 2000;
c)it follows that the applicant was on bail following being charged.
In circumstances where the applicant was on bail:
a)it is possible that he would be able to leave and re-enter Bangladesh;
b)it is not unreasonable that he would return to Bangladesh to face the serious charges.
In these circumstances, the RRT ignored relevant material, being the fact that the applicant was on bail, giving rise to jurisdictional error: see Minister for Immigration v Yusuf at [69] and [82].
The applicant had contended that he had been charged and convicted of a serious criminal offence. The claim was rejected by the presiding member. The presiding member said on page 104 of the court book:
The Applicant claims that he will be arrested and jailed as he was sentenced, in his absence, in June 2001, for murder of a person in 1999. The Applicant produced a letter from a lawyer in support of this claim. I note the country information about such letters from lawyers and false claims of court proceedings and documents.
I also note that the Applicant's passport reveals that he has twice returned to Bangladesh since the time he states he was charged with murder. The Applicant states that the exit-entry stamps in his passport are not genuine. They were put there to give an impression that the Applicant was a frequent traveller, in order to help his efforts to obtain a visa for Australia. He states that he had not travelled at all before coming to Australia.
Contrary to that answer the Applicant, in his original application for protection, made in Australia, claimed to have visited India and returned to Bangladesh after the date on which he was charged. I am not satisfied that the Applicant's response was truthful.
I consider that it is unlikely that someone charged with such serious offences would be able to leave and re-enter Bangladesh on their own passport. I consider it unlikely that the Applicant would have returned to Bangladesh if facing such serious charges.
I am not satisfied that the Applicant has been charged or convicted. I am not satisfied that he has been sentenced in absentia. I am not satisfied that he is at any risk of arrest on return to Bangladesh.
It is plain that the presiding member rejected this claim by the applicant on credibility grounds. The complaint advanced by Mr Zipser, on behalf of the applicant, is that the RRT should have considered the fact that the applicant was on bail in 1999 and, presumably, 2000, awaiting trial and therefore, could have left and re‑entered Bangladesh.
Mr Zipser took me to page 17 of the court book where the applicant gives his address in Bangladesh during 1999 and 2000. On the assumption that what the applicant said in his application form were true, he would have been living at home and would not have been in detention. It would logically follow that if he had been charged with an offence he would have been on bail, or possibly he may have been released pending trial without an obligation to make bail.
However, there are a number of problems with the applicant's argument. The first is that the RRT rejected that the applicant had been charged with an offence at all. The second is that the RRT accepted that what the applicant said in his original visa application was true and that he visited India and returned to Bangladesh. The truth of his original application counted against his assertion at the RRT hearing that he had not left Bangladesh at all.
Thirdly, the applicant cannot have it both ways. Either he left Bangladesh or he did not at the relevant time. His assertion was that he had not left. The presiding member drew an adverse credibility conclusion about that assertion. It is difficult for the applicant now to contend, notwithstanding what he said at the RRT, that in fact he did leave and could have done so because he was released on bail.
The final difficulty for the applicant with this argument is that it is not obvious from the material before the RRT that the applicant was released on bail. If he was to be believed on his application form he was not in detention at the relevant time. Mr Zipser asserts that that should have been taken as evidence that the applicant was on bail. It could equally be taken as evidence that the applicant had not been charged with any offence because if he had been he would have been in detention.
In my view, the evidence available to the RRT did not call for a consideration of the possibility that the applicant had been released on bail pending trial and was in those circumstances able to enter and leave the country. In order for such consideration to be called for, some more specific evidence of bail would have been needed and some consideration would logically have to be given to the issues of the conditions on which bail as granted and whether those conditions included an obligation to surrender the applicant’s passport or not to leave the country pending trial. None of that was before the RRT.
The decision of the RRT on this point was certainly cryptic. It is hypothetically possible that the conclusion reached by the presiding member was wrong. However, that is only an issue concerning the merits of the decision. The RRT’s conclusion that there had been no charge may be wrong if the applicant had been released on bail but, as I have noted, that is by no means certain. Even if the conclusion reached by the presiding member was factually wrong or illogical, that does not of itself establish jurisdictional error.
I find that there was no failure on the part of the RRT to consider a part of the applicant's claim in relation to this issue.
It follows that there was no jurisdictional error in the decision of the RRT. The decision of the RRT is therefore a privative clause decision. The application must be dismissed.
On the question of costs, Ms Pepper seeks an order for costs fixed in the sum of $4,200. That is, in my view, a reasonable sum, having regard to the amount of preparation required of the Minister and the reasonable need for the Minister to be represented by counsel and a solicitor for today's hearing. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,200.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 15 March 2004
6
0