SZAEZ of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 1430
•8 DECEMBER 2003
FEDERAL COURT OF AUSTRALIA
SZAEZ of 2003 v Minister For Immigration & Multicultural & Indigenous Affairs [ 2003] FCA 1430
Federal Court of Australia Act 1976 (Cth) s 25(1A)
Migration Act1958 (Cth) s 430Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 referred to
Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 referred to
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 followed
Minister for Immigration & Multicultural & Indigenous Affairs v Kord (2002) 125 FCR 68 followed
Muin v Refugee Review Tribunal (2002) 190 ALR 601 referred to
NADR v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 465 cited
NAQZ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 200 ALR 662 cited
Re Minister for Immigration & Multicultural Affairs; Ex parte Palme (2003) 201 ALR 327 cited
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 citedSZAEZ OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 1442 OF 2003HELY J
8 DECEMBER 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1442 OF 2003
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZAEZ OF 2003
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
HELY J
DATE OF ORDER:
8 DECEMBER 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1442 OF 2003
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZAEZ OF 2003
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
HELY J
DATE:
8 DECEMBER 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from a decision of a Federal Magistrate of this Court given on 10 September 2003 dismissing an application for review of a decision of the Refugee Review Tribunal (‘the RRT’) affirming a decision of the Minister’s delegate to refuse to grant the appellant a protection visa. By direction of the Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the appeal is to be heard by a single judge.
The appellant is a citizen of Bangladesh. He arrived in Australia on 20 August 2000 travelling on a visa. On 26 September 2000 he applied for a protection visa. That application was refused by the Minister’s delegate on 10 January 2001. The appellant applied to the RRT for review of that decision on 25 January 2001. The RRT held a hearing on 20 November 2002 and handed down its decision on 29 January 2003.
The appellant sought a protection visa on the ground that he had a well-founded fear of persecution if returned to Bangladesh for reason of his political opinion. The appellant claimed before the RRT to be a leading activist and a leader of the Jatiya Party who had been oppressed by BNP activists, as well as by activists from the Awami League.
The RRT did not make a specific finding as to whether or not it accepted the appellant’s claim to be a leading activist and a leader of the Jatiya Party. There is no hint or suggestion in the RRT’s reasons for decision that it rejected this aspect of the appellant’s claim. A beneficial construction of the RRT’s reasons leads to the conclusion that it impliedly accepted the appellant’s claims in this respect.
The following is a brief chronology of the appellant’s claims as to allegedly relevant events taken from the RRT’s reasons of decision:
·in March 1995 Molotov cocktails were thrown by persons unknown at a political meeting attended by the appellant. Later on that day the appellant was seriously assaulted. His assailants said that they would shoot him if he tried to arrange any meeting on behalf of the Jatiya Party. The appellant recognised two of his attackers – Olok and Shovan - who were members of the student wing of the BNP (‘Chatdradal’);
·in 1996 Chatdradal lodged a false case against the appellant;
·at the elections held on 12 June 1996 the Awami League came to power, and for a brief period was in coalition with the Jatiya Party;
·in August 1997 the appellant was attacked by Awami League thugs;
·in 1998 the appellant’s house was twice ransacked by a leading terrorist named Kala Jahangir who was backed by the Awami League;
·in October 1998 the appellant was attacked by Awami League thugs;
·on 12 October 1998 an arrest warrant was issued on the complaint of Kala Jahangir who described himself as a leader of the Bangladesh Awami League. The complaint alleged that the appellant and his friends attacked Mr Jahangir and Awami League staff working in the Awami League’s office with deadly weapons. Numerous offences were alleged in the complaint including attempted murder. The appellant and his friends were described as members of the BNP who ‘are very rampant and desperate in nature’;
·on 30 December 1998 the appellant left Bangladesh for India where he remained for about eight months before moving on to Tanzania and South Africa. On receipt of an assurance from the police that the appellant would be safe in Dhaka, he returned;
·between about May and August 2000 the appellant was employed by Skyway Techno Services in Dhaka City as an assistant marketing manager. In March 2000 his opponents and the police again started to harass him and Kala Jahangir began asking for him;
·the appellant then came to Australia; and
·in October 2001, after the appellant had left Bangladesh, the BNP and the Jamaar-e-Islami parties came to power in place of the Awami League. The appellant put to the RRT that since the BNP-led coalition came to power, the supporters and activists of the Jatiya Party have been facing systematic violations of human rights on an unprecedented scale. They are the victims of ‘massive political harassment and persecution’.
At the hearing, the RRT put to the appellant that as a result of the defeat of the Awami League at the elections of 2001 he should have no further concern with the Awami League, a proposition which the appellant accepted. The Tribunal Member therefore did not consider that aspect of the appellant’s claims any further. That was a course which the RRT Member was entitled to take as the appellant was no longer advancing a fear of persecution at the hands of Awami League supporters to sustain his claim to refugee status: cf Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 at [32].
The RRT recorded the following statement made by the appellant at the hearing:
‘My main concern is not the Awami League or the police. Jangir is the main threat as he is a professional killer. He operates for anyone in power. Also I did not mention that in 1995-1997, … Olok and Shovan, who were supporters of the BNP remain my opponents. They left Bangladesh for their own safety, but Olok has returned and has his power back.’
The RRT accepted the independent country evidence that the Jatiya Party has 14 seats in parliament, that a faction of the Party governs in coalition with the BNP Party, and that the BNP led government is making strong attempts to provide peace and harmony in Bangladesh. The RRT accepted that the Jatiya Party has a neutral attitude towards the BNP. Earlier in its reasons, the RRT assessed the BNP’s attitude to the Jatiya Party as neutral.
The RRT did not make any finding in relation to the appellant’s complaint that he was assaulted by Messrs Olok and Shovan in March 1995. It did accept that Olok and Shovan worked for the BNP. Having regard to the country information, the RRT was not satisfied that there is a real chance in the future of the appellant being selected or targeted for persecution for reason of his political opinion by the government of Bangladesh (the BNP), or any agents on its behalf.
In the complaint lodged by Kala Jahangir, the appellant and his friends were referred to as members of the BNP, whereas the appellant claimed to be a member of the Jatiya Party. At the hearing before the RRT, the appellant said that he had no idea how this came about. However, the adviser submitted that when the complaint was lodged (12 October 1998) the Awami League was in coalition with the Jatiya Party, and that accordingly, the complainant, who was a member of the Awami League, would not have made out a complaint which stated that the applicant was a member of the Jatiya Party. The RRT found that the Jatiya Party left the coalition government in March 1998, hence the adviser’s submission was not an acceptable explanation for Kala Jahangir to have entered the reference to the BNP in the complaint.
For that reason the RRT found that the complaint was a false document. In the RRT’s assessment, that finding was supported by independent evidence as to the ease with which false documents can be obtained in Bangladesh, and the prevalence of Bangladeshi asylum seekers providing false documents in connection with protection visa claims. On that basis, the RRT was not satisfied as to the authenticity of any of the other documents provided by the appellant to the RRT.
The RRT considered that the evidence in relation to Jahangir generally ‘has been called into question’ by reason of the finding that the complaint document is false. For example, the RRT considered that the evidence that the appellant was able to work for Skyways for four months prior to departure for Australia whilst Jahangir was looking for him was implausible. Therefore, the RRT did not accept that Jahangir was searching for the appellant prior to his departure for Australia. Moreover, the RRT accepted the independent evidence that local authorities would not hesitate to move against BNP activists if they were suspected of criminal activity or of inciting communal violence.
Accordingly, the RRT was not satisfied that there is a real chance in the future of the appellant being selected or targeted for persecution by Jahangir, as agent for the State for reason of the appellant’s political opinion. The RRT did not make any finding as to whether or not it accepted the appellant’s claim that Kala Jahangir was a professional killer who worked for whichever political party was in power, or as to whether or not it was satisfied that in 1998 the appellant’s house was twice ransacked by him. The general finding that the evidence in relation to Jahangir ‘has been called into question’ is not equivalent to a finding by the RRT that none of that evidence should be accepted.
The enquiry which the RRT was bound to conduct is essentially forward looking, although the past will often provide a foundation for an assessment as to whether or not there is a real chance of persecution in the future: Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 574-575. The Federal Magistrate found that to the extent that the appellant’s claims were based on a fear of supporters of the BNP, the appellant was not believed. For the reasons which I have given this finding overstates the position. Whilst it is true that the RRT was not satisfied that after the 2001 elections there was a real chance that Kala Jahangir’s services or those of Messrs Olak and Shovan would be enlisted by the BNP in order to persecute the appellant, this finding was not based on any ‘disbelief’ of the appellant. Rather, it involved a rejection of a claim which the appellant made having regard to country information as to the conditions in Bangladesh after the 2001 election. The RRT is entitled to reject the appellant’s claims if they are inconsistent with the RRT’s understanding of conditions in Bangladesh at the relevant time: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, 428.
A failure to make findings about claims of past persecution may well reveal error on the part of the RRT: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 348-349. However, in the light of the conclusion which the RRT reached as to the relationship between the BNP and the Jatiya Party after the 2001 elections it did not matter whether or not the appellant was assaulted by Messrs Olak and Shovan in 1995, or whether or not the appellant’s house was ransacked by Kala Jahangir for the Awami League in 1998. A decision-maker must consider whether or not these are circumstances which would lead to past events being unreliable as guides to the future: Minister for Immigration & Multicultural & Indigenous Affairs v Kord (2002) 125 FCR 68 at 81. The RRT focused on the question committed to it for its determination, and came to a conclusion adverse to the appellant on that question. In the particular circumstances of the case, the failure on the part of the RRT to make a finding in relation to the claims of persecution in the past at the hands of Messrs Olak, Shovan or at the hands of Kala Jahangir is not indicative of jurisdictional error.
The Notice of Appeal to this Court gives as the grounds of appeal a failure on the part of the Federal Magistrate to find that the RRT’s decision was affected by an error of law, lack of procedural fairness and denial of natural justice. No particulars are given of any of these grounds. On the hearing of the appeal the appellant appeared for himself without the benefit of legal assistance, and he required the services of an interpreter. Just prior to the hearing, the appellant filed a document styled ‘Applicant’s submissions’, with the Court. That document was prepared by someone other than the appellant. The appellant was unable to answer questions which I asked of him seeking elucidation of some of those submissions. The appellant did not seek to elaborate on those submissions in oral argument. The appellant’s submissions and my findings in relation to those submissions are as set out hereunder.
‘1.I am a citizen of Bangladesh and a young leader of the student front of Jatiya Party. I arrived in Australia on 20 August 2000 and lodged a protection visa application on 26 September 2000. A delegate of the respondent refused my application for a protection visa on 10 January 2001 and on 25 January 2001 I lodged a review application with the RRT. The RRT affirmed that decision on 31 December 2002.
2.I had a severe political persecution in my home country and I left Bangladesh because of lack of my own security. I am a well-known student leader in Bangladesh, and always fought for the truth against the Awami League and BNP’s torture and repression, with the result that the Supporters of these parties took me as their main enemy. The Awami and BNP terrorists targeted me and tried to kill me several times. I was attacked physically several times. They also filed numerous false charges against me.’
These are in the nature of general observations. They do not demonstrate appellable error on the part of the Federal Magistrate or jurisdictional error on the part of the RRT.
‘3.The Tribunal exceeded its jurisdiction, in failing to accord procedural fairness, as required under section 424A(1) of the Migration Act 1958.’
No particulars of this ground are given, and in the absence of particularisation the ground cannot be regarded as having been made out.
‘4.The RRT did not complete the exercise of its jurisdiction as it made no findings as to what sociopolitical and ethnic changes might occur in Bangladesh in the reasonably foreseeable future and it thus failed to assess whether the applicants’ fears of being persecuted for being a member of a political party were well founded in the reasonably foreseeable future.’
The appellant did not make a claim based upon ‘sociopolitical and ethnic changes’ which might occur in Bangladesh in the reasonably foreseeable future, nor was the appellant able to tell me what this expression is intended to encompass. It is, I suppose, always possible that the Awami League might be returned to government in Bangladesh at some time in the future, but the appellant is recorded by the RRT as having expressly stated at the hearing before the RRT that he is no longer concerned with the Awami League.
‘5.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.’
This is an impermissible invitation to engage in a merits review of the RRT’s decision.
‘6.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 Jatiya Party leaders and activists had subsided, and that information was not “just information about a class of persons”.’
I do not have a transcript of the proceedings before the RRT, or any evidence from the appellant as to what occurred at the hearing. However, the RRT’s reasons for decision include the following:
‘I indicated to the applicant that the Tribunal had not found in the sources it had consulted a reference that would indicate that the Jatiya faction are presently being harassed or threatened by the current government or its supporters. The applicant stated that the leaders do not face persecution, but the others do. He referred to some of his comrades who have fled Bangladesh.
I discussed information with the applicant that Bangladeshi local officials have advised that they have clear instructions from the new Government (from the PM down) to maintain peace and communal harmony. DFAT have been advised that the local authorities would not hesitate to move against BNP or Alliance activists, if they were suspected of criminal activity or of inciting communal violence (Department of Foreign Affairs & Trade (DFAT) 2002, DFAT Report 195, 10 January 2002). The applicant replied that since the BNP came to power, more than 40 people have been killed.’
Accordingly, this submission is not made out.
‘7.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 RRT’s reasons for decision include the following:
‘I discussed information with the applicant that there is a very high level of document fraud in Bangladesh with fraudulent documents able to be obtained with the assistance of the police. (Department of Foreign Affairs and Trade (DFAT) Cable DA 19732, 26 July 1988 CX2690; DFAT Cable DA 824, 24 December 1995 CX13160). The applicant responded that these might be fraudulent activities, but it was not his worry.
I discussed information with the applicant that there is a prevalence of Bangladeshi asylum seekers providing fraudulent documents (1998 report entitled “Bangladesh: Profile of Asylum Claims and Country Conditions” CX31417), the US Bureau of Democracy, Human Rights and Labor). The applicant stated that if the Tribunal was worried about his documentation, it could make further enquiries.’
Accordingly, this submission is not made out.
‘8.The RRT Member has failed to internalise the circumstantial grounds of my protection visa application and in weighing both the subjective and objective claims of the review application and in reviewing the huge supporting facts and documents; and as such the Refugee Review Tribunal has also breached several sections of the migration act and finally in establishing the rules of natural justice.
I do not understand what is sought to be conveyed by this submission, and the appellant was unable to explain it to me.
‘9.I strongly believe that my application has not been taken into consideration properly – the decision made by the Tribunal was relied upon some general facts; therefore establishes a “denial of procedural fairness”. It appears to applicant/prosecutors case that a letter in similar terms had been sent to a recent and remarkable High Court Case (Muin Vs Refugee Review Tribunal and Lie Vs Refugee Review Tribunal). Applicant further believes that Tribunal had not in a position of all Part B” documents thoroughly upon which the original decision-maker (DIMIA) had relied, in particular the documents, providing country information, and various materials in relating to establish my claims as a refugee. The evidence before the RRT was not containing some of it but not all part B materials.’
The factual basis for the application of the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 has not been established in the present case. There is no evidence that the applicant was misled by any communication which he received from the RRT: NADR v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 465; NAQZ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 200 ALR 662 at [72].
‘10.The Tribunal failed to refer to evidence or any other material on which its finding of fact was made in relation to the protection available from the authorities in Bangladesh to the applicant, a procedure required under s430(1)(d) of the Migration Act 1958 (the Act).’
No detail is given of any alleged failure on the part of the RRT in this respect. It is therefore not established. In any event, any failure to comply with s 430 of the Migration Act1958 (Cth) (‘the Act’) does not establish that the RRT’s decision was unauthorised, or the product of jurisdictional error: cf Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327.
‘11.The Tribunal made an error of law being an incorrect application of the law to the facts as found by the person who made the decision. The Tribunal’s decision that the applicant does not have a well founded fear of persecution because of his views on politics and thus is not someone to whom Australia has protection obligations under the Refugees Convention and is therefore not entitled to a protection visa is an error of law.’
This appears to invoke the provisions of the former s 476(1)(e) of the Act. Although error of law is asserted, the appellant’s complaint is with the facts as found by the RRT.
‘12.Refugee Review Tribunal failed to collect my part B documents from the DIMIA file and decided my matter without such documents. Therefore, Refugee Review Tribunal failed to comply with Section 424(1) and Section 418(3) and of the Migration Act 1958. This is procedural unfairness.’
There is no evidence of this alleged failure, nor is there a demonstration of any procedural unfairness on the part of the RRT.
‘13.I supplied sufficient documents, which were not referred by the Tribunal in its reasons. This is procedural inefficiency. I provided a detail submission and necessary supporting documents in describing my real threat of persecution in Bangladesh. The RRT failed to predict any foreseeable future danger in deciding this matter. I wish to explain more details to supplement this summary with my oral arguments at the hearing if necessary.’
The RRT itemises the documents which it received from the appellant’s adviser at RD 104-105, and refers in its reasons to submissions received from the adviser at RD 105. The appellant was unable to identify the documents to which this submission relates.
There is no substance in any of the appellant’s submissions. The appeal should therefore be dismissed with costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate:
Dated: 8 December 2003
The appellant appeared in person Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 December 2003 Date of Judgment: 8 December 2003
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