SZAIV v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 452

FEDERAL COURT OF AUSTRALIA

SZAIV v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 452

SZAIV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 104 of 2004

SACKVILLE J
SYDNEY
16 APRIL 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 104 OF 2004

BETWEEN:	SZAIV APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	16 APRIL 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s 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 104 OF 2004

BETWEEN:	SZAIV APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	16  APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court given on 16 January 2004.  The learned Magistrate dismissed the appellant’s application for judicial review of the decision of the Refugee Review Tribunal (“RRT”) handed down on 21 March 2003.  The RRT had affirmed a decision of a delegate of the respondent (“the Minister”) not to grant the appellant a protection visa.

2. The appellant made written submissions to the RRT through a migration agent.  However, he appeared in person before the Federal Magistrates Court and he has represented himself in this Court. 

3. The amended notice of appeal filed by the appellant does not identify any error of law on the part of the Magistrate, beyond asserting that his Honour failed to find that the RRT had committed a jurisdictional error and had denied the appellant procedural fairness.  The notice of appeal is uninformative as to the error of law or denial or procedural fairness that the appellant claims occurred. 

4. The appellant handed up written submissions at the hearing.  These complain about the RRT’s findings of fact, but also assert that the appellant’s case is “perfectly identical” with Muin v Refugee Review Tribunal (2002) 190 ALR 601, and that he was therefore denied procedural fairness. The submissions also assert, without elaboration, that the RRT was biased. Finally, they claim that the RRT did not make findings as to what “socio-political changes” might occur in Bangladesh.

   BACKGROUND

5. The appellant is a citizen of Bangladesh, who arrived in Australia on 12 December 2000.  On 17 January 2001, he lodged an application for a protection visa.  That application was rejected by the delegate on 29 March 2001 and an application for review by the RRT failed. 

6. Both before the delegate and the RRT, the appellant claimed to fear persecution in Bangladesh by reason of his political opinions.  The appellant claimed that his family had been politically conscious for decades, especially his father.  He said that he had been politically active since his boyhood and that as a young activist and social worker he had gained huge popularity in Dhaka. 

7. The appellant claimed that he had become an active member of the Jatiya Party in 1988 and that he was elected secretary of the Nangolkot branch of the Party in 1989.  Shortly before then, he had begun to live in Dhaka where, so he claimed, he had established himself successfully as a businessman and was responsible for organising “grass-roots level political meetings” and major development works.  This was said to have earned the appellant the enmity of other political parties.

8. The appellant claimed that in early 1991 members of the Awami League and the BNP demanded large sums of money from him.  When he declined to pay, attempts were made to destroy his career.  His name was included in a list of those responsible for political murders and he was the subject of a malicious case mounted against him.

9. According to the appellant, local Awami League leaders managed to influence both the police and the court.  In consequence the appellant and others were found guilty of murder.  Two of his supporters were sent to gaol for life, but the appellant himself managed to escape and take shelter in one of his relative’s houses in Dhaka. 

10. The appellant said that in early 1991 Awami League terrorists found and attacked him.  About a week later he suffered a further attack and sustained serious injuries, requiring hospitalisation.  According to the appellant, he still bore the signs of those attacks on his forehead, left ear, shoulder, right hand and right knee.

11. Following this attack, supporters of the appellant arranged a procession.  However, this provoked another attack by Awami League terrorists and the police, resulting in severe injuries to some of the appellant’s supporters.  As a result of this situation, he finally decided to leave the country.  After obtaining a working visa, he left for Kuwait and remained there from late 1991 until 2000, when his contract expired.

12. The appellant stated that he did not dare to return to Bangladesh for fear of putting himself at risk of political persecution and death.  To avoid that situation, he obtained a visa from the Australian High Commission in Dubai on 9 October 2000 and arrived in Sydney on 12 December 2000.

13. At the hearing before the RRT, the appellant stated that he had returned from Kuwait to Bangladesh in 1993 for a period of three months.  During this period he married and stayed at his father-in-law’s house.  Thereafter he returned to Kuwait.  However, he again returned to Bangladesh in 1997, to visit his dying mother.  On that occasion, the appellant stayed in Bangladesh for approximately one and a half months.

14. The appellant arranged for Australian visas for his wife and child while they were in Dubai.  They then travelled together from Kuwait to Bangladesh on the way to Australia.  On this occasion, the appellant stayed in Bangladesh for just under one month.  When he travelled to Australia, his family remained behind.

15. The RRT member put to the appellant at the hearing that his trips to Bangladesh seemed to negate a fear that he would be persecuted and possibly killed if he returned to Bangladesh.  The appellant’s response was that he was indeed fearful, but that he had returned to Bangladesh for family reasons.

16. The appellant also told the RRT that he had travelled not only to Kuwait, but to Dubai and to Saudi Arabia.  He had not applied for refugee status in Saudi Arabia as the authorities there did not recognise the Convention relating to the Status of Refugees.

17. The appellant was asked why he had not brought his wife and child with him to Australia.  His response was that there was no time, since he was attempting to flee the people who were trying to kill him.  The appellant claimed that he had been unable to contact his wife and child because he did not know where they were hiding.  However, he also said that he had left his wife at his father-in-law’s place.

18. The RRT member put to the appellant that he had been out of Bangladesh for nearly ten years and that it was difficult to accept that a person with his political profile would still be the subject of interest by opposition parties.  The appellant replied that there were people in Bangladesh who would seek revenge even after a long time.  He acknowledged that the BNP had come to power in October 2001 in an alliance with the Jatiya Party.  He maintained, nonetheless, that he would still face trouble in Bangladesh.

    THE RRT’S DECISION

19. The core of the RRT’s reasoning was stated briefly, in the following passages:

    “I find the actions of the [appellant] in returning to and staying in Bangladesh for three substantial periods in 1993, 1997 and 2000, during which time he was aware that he had been charged and found guilty of the very serious crime of murder, an attempt had been made to kill him and that he had left Bangladesh because he was in an imminent life-threatening situation, to be inconsistent with a person holding a subjective fear of persecution.

    Further, I find the [appellant’s] actions in returning to Bangladesh in 1997 and 2000, which post-date the time (1996) from which he was being sought for arrest under the ‘draconian’ Special Power Act 1974, and a ‘systematic reign of terror’ had begun in Bangladesh, to be inconsistent with a person holding a subjective fear of persecution.

    I do not accept the [appellant’s] evidence that although fearful himself, he returned to Bangladesh for his family.  Firstly, it is inconsistent with the length of the periods of time that he remained in Bangladesh and the number of occasions that he returned.  It is also inconsistent with his returning to Bangladesh with his wife and child, which on his own evidence placed them in a dangerous situation.  Accordingly, I reject his evidence in that regard.

    Further, I find that the actions of the [appellant] in renewing his passport in 1994, extending its validity in 1999, and travelling on that passport in his own name, from 1991 when he went to Kuwait and each trip thereafter to and from Bangladesh at times when he had been found guilty of a very serious crime and the Police were searching for him, to be inconsistent with a person who has a subjective fear of persecution in Bangladesh.

    Furthermore, while out of a Bangladesh for a period approaching 10  years, the [appellant] had the opportunity to seek asylum elsewhere, but did not do so, and on three occasions he chose to return to Bangladesh.  Accordingly, I find that the [appellant] delayed seeking protection and that his actions were inconsistent with a person who had a subjective fear of persecution in Bangladesh.

    I find that the [appellant] does not hold a subjective fear of persecution in Bangladesh.

    Therefore, I am not satisfied on the evidence before me that the [appellant] has a well-founded fear of persecution for any Convention related reason.”

    THE MAGISTRATES COURT DECISION

20. The learned Magistrate, in an ex tempore judgment, noted the RRT’s finding that the appellant did not have a subjective fear of persecution in Bangladesh.  His Honour considered that this was a matter for the RRT itself to decide.  It was not open to the Court to enter the “arena of a merits review” and thus it was not open to the Court to reach a different conclusion.  No grounds had been put forward which could in any way indicate that the RRT had made jurisdictional errors.  Accordingly, his Honour dismissed the application.

    REASONING

21. The core of the appellant’s complaint is that the RRT did not believe his claim to fear persecution in Bangladesh.  His complaints included his belief that he knew the political position better than those who prepared country information which, in any event, was “incomplete, vague and in some cases not true”.

22. The assessment of the evidence was, however, quintessentially a matter for the RRT.  The learned Magistrate correctly held that it was not open to the Court to enter the arena of merits review.

23. Although the appellant’s submissions invoked Muin v RRT, they did not explain why the cases were identical.  In fact they are not.  The decision in Muin v RRT depended on an agreed statement of facts which made it clear that Mr Muin had been misled by the RRT’s statements.  There is no evidence of anything equivalent in the present case.

24. There is no foundation for the appellant’s unelaborated claim of bias on the part of the RRT.  Nor is there any substance in the contention that the RRT failed to address possible socio-political changes in Bangladesh.  The RRT’s finding that the appellant did not have a subjective fear of persecution upon his return to Bangladesh was fatal to his claim to have a well-founded fear of persecution on one of the Convention grounds.  The RRT did not have to explore further than it did the likely changes in Bangladesh.

25. I raised with Ms Hartstein, counsel for the Minister, one respect of the RRT’s reasoning that seemed to me not entirely satisfactory.  Although the RRT found that the appellant had no subjective fear of persecution, it did not explicitly reject his claim that he had been convicted on a false charge of murder and faced life imprisonment.

26. Ms Hartstein submitted that although the RRT did not expressly reject that claim, a reading of the reasons as a whole shows that it intended to do so.  The RRT, in the first paragraph of its reasons extracted in [19] above, referred to his claims that he had been falsely charged with and convicted of murder, been the subject of an attempt to kill him and left Bangladesh in imminent fear of his life.  As Ms Hartstein contended, the RRT could hardly have found that these claims were true, yet also rejected the appellant’s claim that he feared persecution in Bangladesh.  Therefore, although the RRT could have expressed itself more clearly, I think that a fair interpretation of its reasons is that it rejected the appellant’s claims that he had suffered serious harm in Bangladesh because of his political beliefs.

    CONCLUSION

27. The appeal must be dismissed.  The appellant must pay the Minister’s costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville .

Associate:

Dated:             16 April 2004

The appellant appeared for himself.

Counsel for the Respondent:	Ms V Hartstein
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	14 April 2004
Date of Judgment:	16 April 2004