SZAJV v Minister for Immigration
[2004] FMCA 76
•23 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAJV v MINISTER FOR IMMIGRATION | [2004] FMCA 76 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – whether RRT asked itself the right question considered – whether the RRT overlooked or misunderstood an element of the applicant’s claims considered – whether relief should in any event be refused on the basis of the applicant’s delay considered. PRACTICE AND PROCEDURE – The only proper and necessary respondent in migration proceedings is the Minister. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.417, 474, 476, 477
Abebe v Commonwealth (1999) 197 CLR 510
Boughey v The Queen (1986) 161 CLR 10
Chan v Minister for Immigration (1989) 169 CLR 379
Htun v Minister for Immigration (2001) 194 ALR 244
Immigration and Naturalization Service v Cardoza-Fonseca (1987) 94 L Ed 2d 434
Immigration and Naturalization Servic v Stevic (1984) 467 US 407
Karras v Minister for Immigration (1998) 56 ALD 167
Linett v McIntyre (2002) 117 FCR 189
Minister for Immigration v Guo (1996) 64 FCR 151; (1997) 191 CLR 559
Minister for Immigration v Peko-Wallsend (1986) 162 CLR 24
Minister for Immigration v Thiyagarajah (2000) 199 CLR 343
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Yusuf [2001] HCA 30; (2001) 180 ALR 1, (2001) 206 CLR 323
Muralidharan v Minister for Immigration (1996) 62 FCR 402
N1202/01A v Minister for Immigration (2001) 68 ALD 21
NAAG of 2002 v Minister for Immigration [2003] FCAFC 135
Paramasivan v Minister for Immigration (Full Court, 30 June 1998, unreported)
Paul v Minister for Immigration (2001) 113 FCR 396
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration; ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Minister for Immigration; Ex parte Lam (2003) 195 ALR 502
Re Ruddock; ex parte Reyes (2000) 177 ALR 484
Reg v Home Secretary; Ex parte Sivakumaran (1998) AC 958
SCAT v Minister for Immigration [2003] FCAFC 80
Sellamuthu v Minister for Immigration (1999) 90 FCR 287
Sinclair v Maryborough Mining Warden (1975) 132 CLR 473
Steed v Minister for Immigration (1981) 37 ALR 620
SZAJA v Minister for Immigration [2004] FMCA 73
W396/01 v Minister for Immigration (2002) 68 ALD 69
| Applicant: | SZAJV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ591 of 2003 |
| Delivered on: | 23 April 2004 |
| Delivered at: | Sydney |
| Hearing date: Date final submissions made: | 19 February 2004 12 March 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Dr S C Churches |
| Solicitors for the Applicant: | Michaela Byers |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Minister’s objection to competency filed on 20 June 2003 is upheld.
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 $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ591 of 2003
| SZAJV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 21 November 2001. The decision was handed down on 18 December 2001. The RRT affirmed the decision of delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Bangladesh and made claims of political persecution. He arrived in Australia legally on a student visa and applied for a protection visa on 24 April 1999. The applicant stated that until he came to Australia he had been a student in Bangladesh involved in politics through his membership of the Bangladesh National Party (BNP) (one of the major political parties competing for government in Bangladesh). He claimed that he had a well founded fear of persecution, in the form of physical violence, either from opponents of the BNP, or factions from within the BNP, for reasons of his political status.
I accept the following statement of background facts contained in paragraphs 2-4 of written submissions prepared by Mr Reilly on behalf of the Minister:
The applicant arrived in Australia on 8 July 1998: court book, page 24.2. He applied for the visa on 10 May 1999: court book, pages 1-29. On 1 July 1999 the delegate refused the application: court book, pages 30-37. The applicant applied to the RRT for review on 22 July 1999: court book, pages 39-43. The RRT held a hearing on 20 November 2001: court book, page 86.
The applicant claimed to fear persecution for reason of his political opinion in Bangladesh. He claimed to be a member of the student wing of the BNP and to have been involved in conflicts with members of the rival Awami League (AL). He claimed to have been arrested and assaulted in 1997, and that a bribe had to be paid by his father for his release. He claimed that he would again involve himself in politics if returned to Bangladesh, and as a result feared further arrests, mistreatment and false charges. See generally court book, pages 24-29, 95-99.
The RRT accepted the applicant’s claims to have been arrested and mistreated in 1997, and to have been threatened although not personally harmed by AL members at other times. However the RRT did not accept that the applicant was of ongoing interest to the Bangladeshi authorities (or other political groups), noting that he had not been arrested subsequently by the authorities despite many opportunities to do so: court book, page 105.3. The RRT accepted that the applicant would again involve himself in politics in Bangladesh if returned, but given his statement that he did not wish to be involved in violence and that independent country information showed that the BNP were now in power in Bangladesh, the RRT was not satisfied that the applicant would thereby be at risk of persecution: court book, page 105.9.
The RRT accepted that:
a)the applicant is a Bangladeshi national;
b)he was active with the Chattra Dal when he was a student and was a member of it engaged in a range of activities, both before and after the 1996 Bangladeshi elections;
c)there was a conflict in the applicant’s residence at his university between opposing factions of the Chattra Dal, in which some of the applicant’s friends were injured;
d)the applicant was detained and physically mistreated when his university premises were searched for illegal weapons;
e)the applicant was threatened by an Awami League supporter after he (the applicant) campaigned for an unsuccessful candidate;
f)the applicant and other BNP supporting students were forced out of the university premises;
g)the applicant participated in a political fight;
h)if the applicant returns to Bangladesh he might choose to again be involved in political activities in support of the BNP, either with the BNP itself or one of its affiliated organisations, such as the JCD;
i)the applicant would not be able to get back his previous political position;
j)the applicant’s relative was expelled from the BNP after he refused to support the pre-selected candidate;
k)some BNP officials had been arrested in a particular area of Bangladesh; and
l)if he returns to Bangladesh he will become involved in litigation concerning a dispute over land involving the applicant’s family.
The RRT did not accept that:
a)the applicant was of any ongoing interest to the police;
b)the applicant was harmed by the Awami League because of the applicant’s involvement in any particular election;
c)the applicant was harmed personally as a result of BNP students being forced out of their university premises;
d)the Bangladeshi authorities had any interest in pursuing the applicant because of his participation in a political fight;
e)the applicant was prevented from expressing his political opinion;
f)the applicant was of any ongoing interest to the Bangladeshi authorities or to opposing political groups because of his political opinion or activities;
g)the applicant was harmed personally by an Awami League official because he had failed to join the Awami League;
h)the applicant has any connection to the arrest of BNP officials; and
i)there was any Convention nexus to any harm the applicant might suffer by becoming involved in litigation over the land dispute.
The RRT concluded that whilst the applicant was involved in political activities, some of which involved violence, prior to his departure from Bangladesh, the applicant was not prevented from expressing his political opinion and neither was he of any ongoing interest to the Bangladeshi authorities or to political groups because of his political opinion or activities. The presiding member said (court book, page 107):
The independent evidence before me is that the BNP is a legal political party in Bangladesh. It has recently won a landslide victory in parliamentary elections. There is nothing in the independent evidence before me to suggest that the BNP will not remain the governing party in Bangladesh until the next general election. There is also nothing in the independent evidence before me to indicate that a supporter of the BNP is unable to be openly involved in political activities in Bangladesh.
I note the applicant’s evidence that he is personally committed to peaceful political activities. The independent evidence before me indicates that it is possible to be involved in political activities in Bangladesh without being a perpetrator or a victim of violence. In my view, the applicant would be able to return to Bangladesh and participate in political activities to the same level as he did prior to coming to Australia without being at risk of persecution.
The applicant proceeded on an amended application filed on 17 September 2003. Only the first three grounds of that application were pressed. They are:
(1)The RRT failed to rely upon relevant considerations in coming to a conclusion against the applicant. The particular evidence before the RRT upon which it failed to speculate, and which was directly bearing on the question before the RRT of whether the applicant had a well-founded fear of persecution for a Convention reason was:
(1)the Hotline Newsletter dated 14 December 1999 covering the period October-November 1999; and
(2)the US State Department Report on Human Rights Practices 2000, dated 23 February 2001.
(2)The RRT reached a conclusion on the question of whether the applicant’s fear of persecution was well founded without having regard to all the claims made by the applicant. The applicant particularly referred to the death of political activists whom he knew and fear of similar treatment, borne out in the evidence referred to in ground 1 above, was central to his claim.
(3)The RRT failed to perform properly or at all its statutory duty of properly coming to a decision as to whether the applicant held a well-founded fear of persecution for a Convention reason. In particular the RRT failed to speculate on the evidence available to it that the applicant had a well-founded fear of physical violence related to his political activities that could lead to a possibility that was not negligible of that violence falling on him in the future.
The parties agreed that I should have regard to the book of relevant documents annexed to the affidavit of Michaela Gaye Byers, filed on 4 September 2003 on behalf of the applicant and the transcript of the hearing before the RRT annexed to the affidavit of Johanna Louise Selth, filed on 17 February 2004 on behalf of the respondent. The respondent filed a notice of objection to competency on 20 June 2003 based upon the applicant’s failure to lodge his application within the time prescribed by s.477(1A) of the Migration Act, however it was agreed that I should decide whether the decision subject to review is a privative clause decision before dealing with that objection.
Submissions
Dr Churches, for the applicant, presented the following written submissions filed on 11 February 2004:
1. Ground 1: Failure to take account of relevant considerations.
The applicant had been, until his flight to Australia, a student in Bangladesh, involved in politics through his membership of the BNP (one of the two major parties that compete for government in Bangladesh). His claim was that he had a well founded fear of persecution (in the form of physical violence, either from opponents of the BNP, or factions within the BNP) for reason of his political status. In terms of the Convention, that fear could be for reason of political opinion or membership of a social group.
As to the evidence before the RRT going to the applicant’s well‑founded fear of persecution, the RRT referred (under the heading independent evidence) [RRT p10] to the US State Department Report on Human Rights 2000 (23 February 2001), and extracted portions of that Report going to the high level of violence involved in political activity in Bangladesh. Those extracts are to be found at pp3 and 6 of the Report [the court book available to the author of the submissions does not have pagination].
The RRT’s findings and reasons are at pp 13 to 15. No reference is made to the 2000 state Department report.
Amongst other independent materials available to the Tribunal was the Hotline Newsletter of 14 December 1999, published by Rosaline Costa, which was sent to the tribunal under cover of letter from Parish Patience, solicitors, on 28 February 2000. Page 2 of this newsletter, under the heading HARTALS, presents a picture of violence associated with politics and related industrial action in Bangladesh (a Hartal is a strike). The RRT at no stage referred to this relevant material.
The failure to refer to this material at all (in the case of the newsletter) or in the case of the State Department Report, in the reasoning process, goes to the jurisdictional error of failure to take account of relevant considerations. It also reveals the infection of the wrong questions in the RRT’s mind which underlie the other Grounds of Appeal in this matter. The law on failure to take account of relevant considerations is as referred to in SCAT v Minister for Immigration [2003] FCAFC 80 per Madgwick and Conti JJ:
29 However these matters may be, even on the narrow view of the effect of S157 proposed by counsel for the appellant, it cannot be other than an important matter, going to the core of the Tribunal's jurisdiction, to overlook crucial material amounting, as Allsop J put it in Htun v Minister for Immigration (2001) 194 ALR 244 at 259, to an integer of the claim. In that case, Allsop J, with whom Spender J agreed, said that "To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.”
His Honour then made clear that this includes a failure to examine all the integers of any claim, saying
"The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Immigration v Peko-Wallsend (1986) 162 CLR 24 ... and Minister for Immigration v Yusuf (2001) 206 CLR 323”.
Merkel J agreed with Allsop J in the result and was not at odds with Allsop J's approach. Another Full Court (Black CJ, Wilcox and Moore JJ) agreed with this approach in W396/01 v Minister for Immigration (2002) 68 ALD 69 at 78-81 [31]-[38].
30 The Tribunal's error in our view involved the failure to perform an imperative duty and amounted to a jurisdictional error able to be corrected by this Court despite s 474 of the Act. Section 39B of the Judiciary Act 1903 (Cth) gives this court "jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer ... of the Commonwealth.” Mandamus would lie to compel a proper exercise of jurisdiction by the Tribunal, and should go.
See also W396/01 v Minister for Immigration (2002) 68 ALD 69 per Black CJ, Wilcox and Moore JJ:
33. … In failing to ask the right question, the Tribunal fell into error. This error may be characterised in a number of ways as is illustrated by the judgment of Wilcox and Madgwick JJ in Sellamuthu v Minister for Immigration (1999) 90 FCR 287 at 292 -293:
"... [B]ecause the RRT did not apply itself to all the substantial matters which might bear on whether the applicant met the Convention requirements of a refugee, the RRT did not consider the 'real question which it was its duty to consider’ and this was a constructive failure by the Tribunal to exercise its jurisdiction: Minister for Immigration v Guo (1997) 191 CLR 559 at 577, per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, implicitly endorsing the legal analysis (though not the factual conclusions) of Beaumont J at first instance (1996) 64 FCR 151 at 165. See also Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 480 and 483. A decision based on the RRT's constructive failure to exercise its jurisdiction is one ‘not authorised by the Act’ within the meaning of s.476(1)(c). It also involves an 'error of law, being an error involving an incorrect interpretation of the applicable law’ within s 476(1)(e). Further, it may involve an ‘error of law, being an error involving ... an incorrect application of the law to the facts as found’ within s 476(1)(e) because, although the facts as found were that the appellant was not credible, the Act was incorrectly applied to that fact so as to result in the application being dismissed. The correct application of the law (in the circumstances of this case) required a determination, despite the appellant's lack of credit-worthiness, as to whether, on all of the relevant information obtained (including any which reasonably could and should have been obtained), he was a refugee, albeit an untruthful one.”
(See also Minister for Immigration v Yusuf [2001] HCA 30; (2001) 180 ALR 1 [206 CLR 323] particularly at paras 82 to 85.)
Ground 2: Failure to have regard to all the claims made by the applicant.
The applicant referred to the death of his friend Arif as a result of political faction fighting, in his Statutory Declaration of 29 April 1999 [p3]. This was raised again in the hearing [20 November 2001, p13], and appears to have been accepted by the RRT [hearing p14.9]. The RRT said not a word as to this evidence, the nearest it came being at RRT p5.9 where there is a reference to a conflict between opposing factions: “Some of the applicant’s friends were injured.” This is a distortion of the evidence amounting to a failure to have regard to the claims of the applicant.
Similarly, the RRT accepted [p13] that the applicant was threatened by an Awami League [opposition to the BNP] supporter after he campaigned for an unsuccessful candidate, but then wrote:
However, the applicant claimed that he continued to be involved in political activities. He did not claim and the evidence does not suggest that the Awami League harmed him either because of his involvement in this particular election or at all.
The law on such failure in respect of non-rebutted credible evidence is as set out by the Full Court of the Federal Court in N1202/01A v Minister for Immigration (2001) 68 ALD 21 [49] and [57] per Lee, Moore and Madgwick JJ:
The question whether the Tribunal has made a decision as required by the Act does not involve inquiry into whether the Tribunal has made correct findings of fact, or has failed to make findings at all. The obligation on the Tribunal is to assess whether there is a real risk that an applicant may suffer persecution in future taking into account the possibility that the applicant may have experienced the events claimed before the Tribunal. Only if the Tribunal has reached a positive conclusion that such events did not occur, supported by reliance upon material that justifies that conclusion, may the Tribunal refuse to consider at all material that would otherwise be relevant to the assessment of whether there was a real chance that the applicant may suffer persecution and whether the applicant's fear of persecution was a well-founded fear.
The ultimate question that the Tribunal should have addressed was whether there was a real risk of future persecution. (See: Abebe v Commonwealth (1999) 197 CLR 510 per Gummow, Hayne JJ at [192], [199]. …[Discussion of facts not dealt with by the Tribunal in that case] … The Tribunal does not discuss any of these matters and it is to be concluded that it did not consider them. (Yusuf[(2001) 206 CLR 323] per Gleeson CJ at [10].) Its failure to do so evidences a misunderstanding of the law and a failure to have regard to relevant considerations and ground for review arises under s 476 (1) (b), (c), or (e) of the Act. (Yusuf per McHugh, Gummow and Hayne JJ at [85].)
Ground 3: The failure to speculate on the correct question: was there a reasonable degree of likelihood that the applicant would be persecuted for a Convention reason on his return to his own country
The RRT has asked itself (inferentially) a number of seriously wrong questions. At page 14.1 the RRT says, of an incident in which the applicant and other BNP supporting students were forced from their hall of residence: “… the applicant did not claim and the evidence before me does not suggest that he was personally harmed as a result of this incident.”
The question is not whether the applicant was actually injured, but whether the behaviour of his political opponents left him with a well founded fear of persecution. Similarly at page 14.7-8 the RRT twice advances the possibility of a BNP supporter being able to be involved in political activities without being a victim of violence. The correct question is not whether it would be possible to be politically active in Bangladesh without being attacked, but whether the applicant had a well founded fear of being persecuted either for his political opinions, or for being a member of the social group of politically active BNP supporters, Bangladeshis who had been student political activists.
The High Court decisions in Chan and Guo (relevantly set out below) illustrate that the “well founded” fear test is an objective test superimposed on the Applicant’s subjective fear. To suggest, as the RRT has, that there is a possibility of being politically active without consequent harm, as a means of disposing of the applicant’s objective fear, flies in the face of the real chance concept that emerged in Chan. The RRT must speculate on that chance, which may be considerably less than a 50% chance of persecution: such a chance can hardly be dismissed by suggesting that there is a chance (how small?) that a politically active person might operate unscathed in Bangladesh.
Chan v Minister for Immigration (1989) 169 CLR 379 at 389 per Mason CJ:
12. I agree with the conclusion reached by McHugh J. that a fear of persecution is "well-founded” if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. This interpretation accords with the decision of the House of Lords in Reg. v. Home Secretary; Ex parte Sivakumaran (1988) AC 958. There Lord Keith of Kinkel spoke (at p 994) of the need for an applicant to demonstrate "a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country” and Lord Goff of Chieveley spoke (at p 1000) of "a real and substantial risk of persecution.” Lord Bridge of Harwich, Lord Templeman and Lord Griffiths agreed with Lord Keith and Lord Goff. A similar opinion was expressed by the Supreme Court of the United States in Immigration and Naturalization Service v. Cardoza-Fonseca (1987) 94 L Ed 2d 434 where Stevens J., with reference to a statutory provision (which reflected the language of Art.1(A)(2) of the Convention), in delivering the majority opinion, and citing Immigration and Naturalization Service v. Stevic (1984) 467 US 407, at p 425, observed (at p 453) that the interpretation favoured by the majority would indicate that "it is enough that persecution is a reasonable possibility”. I do not detect any significant difference in the various expressions to which I have referred. But I prefer the expression "a real chance" because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v. The Queen (1986) 161 CLR 10, at p 21, per Mason, Wilson and Deane JJ. If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
Minister for Immigration v Guo (1997) 191 CLR 559 at 571.8-572.3 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ:
An applicant for refugee status must also establish that his or her fear of persecution for a Convention reason is a "well-founded" fear. This element adds an objective requirement to the requirement that an applicant must in fact hold such a fear. In Chan [169 CLR at 389], Mason CJ said:
"If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.”
In the same case, McHugh J said [169 CLR at 429] that a real chance of persecution excluded a far-fetched possibility of persecution but that as little as a 10 per cent chance of persecution may constitute a well-founded fear of persecution.
Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In his oral submissions, Dr Churches stated that the issue before me is essentially whether the RRT failed to constructively exercise its jurisdiction by reason of its failure to ask itself the right question and by reason of it failing to take into account relevant material going to an element or integer of the applicant’s claims. Dr Churches submits that it is apparent that the RRT asked itself the wrong question. He submits that the presiding member asked herself whether the applicant would be able to participate in Bangladeshi politics should he return to Bangladesh. He submits that the presiding member should have asked herself whether there was a real risk that the applicant would suffer persecution should he return to Bangladesh and participate in politics in that country.
Further, Dr Churches submits that the RRT failed to take into account a document setting out important elements of the applicant’s claims. This was a “hotline newsletter” dealing with the present political situation in Bangladesh, which appears from page 71 of the court book. Dr Churches further submits that the RRT failed to take into account a US State Department assessment of the political situation in Bangladesh, which appears in the court book at page 183. Further, Dr Churches submits that the RRT erred in misconstruing an element of the applicant’s claims. This is evidenced by the presiding member’s finding, on page 13 of her decision at page 106 of the court book, that there was a conflict in the applicant’s university residence between opposing factions of the Chatra Dal, in which some of the applicant’s friends were injured. The presiding member makes no mention of the applicant’s claim that one of his friends was killed: see paragraph 10 of the applicant’s statutory declaration at page 26 of the court book.
In essence, Dr Churches submits that the RRT has failed to deal properly with the evidence before it about political violence in Bangladesh and has failed to assess properly the risk of the applicant being subjected to that violence.
Mr Reilly makes the following submissions:
It is apparent that the applicant was unsuccessful because of the view the RRT took of the facts, in particular its finding that the applicant would not be at risk of persecution if returned to Bangladesh. This conclusion was open for the reasons the RRT gives, including the country information it cites that the BNP were in power as at the date of the RRT’s decision (this being the relevant date for assessing the Applicant’s claims: Minister for Immigration v Thiyagarajah (2000) 199 CLR 343 at [28]). It is unlikely that refugee status is to be granted to a person whose account, although plausible and coherent, was inconsistent with the RRT’s understanding of conditions in his or her country of nationality: Chan v Minister for Immigration (1989) 169 CLR 379 at 428 per McHugh J. The Court cannot review the merits of the RRT’s decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the RRT making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
The application names the Secretary of the Department as third respondent. However the proper parties in this matter are the Minister and the Refugee Review Tribunal only: Re Ruddock; ex parte Reyes (2000) 177 ALR 484 (HCA/McHugh J) at [25-26]; see also NAAG of 2002 v Minister for Immigration [2003] FCAFC 135 at [60]. Accordingly the third respondent should cease to be a party.
The grounds raised in the applicant’s “Draft Amended Grounds of Appeal” when read with the applicant’s submissions will be addressed in turn.
First it is claimed that the RRT failed to have regard to country information before it, and this constituted a failure to have regard to a relevant consideration. In the case of one item of country information, this claim is made even though it is specifically referred to in the RRT’s account of the evidence before it. The country information in both cases noted that there was political violence in Bangladesh, which the RRT’s decision acknowledges. How, given this, the applicant can assert that this country information was disregarded by the Tribunal is unexplained. In any case, the RRT “was not obliged as a matter of law to refer expressly to every piece of evidence which might have supported the [applicant’s] case”: Paramasivan v Minister for Immigration (Full Court, 30 June 1998, unreported); Muralidharan v Minister for Immigration (1996) 62 FCR 402 at 414 per Sackville J; Minister for Immigration v Guo (1997) 191 CLR 559 at 593 per Kirby J; Minister for Immigration v Yusuf (2001) 206 CLR 323 at [75]. Moreover, it does not follow that because the RRT has not mentioned a matter in its reasons it has failed to consider it: Steed v Minister for Immigration (1981) 37 ALR 620 (FCA/FC) at 621 per Fox J; Karras v Minister for Immigration (1998) 56 ALD 167 (FCA/Merkel J) at 173. The RRT addressed every element or integer of the applicant’s claims, and did not have to expressly mention or grapple with every item of evidence said to support those claims: Paul v Minister for Immigration (2001) 113 FCR 396 (FC) at [78-79]. This ground is not made out.
Secondly it is stated that the RRT failed to have regard to the applicant’s claims because it did not expressly mention the applicant’s claim that a friend of his had been killed. As the applicant’s submissions acknowledge that the RRT appears to have accepted this claim it is unclear why there is said to be an error by the RRT. It is hardly required to repeat every word of the applicant’s oral and written statements in its decision: see the cases cited in para 7 above. This ground is not made out.
Finally it is stated that the RRT failed to properly speculate as to the future, but it is plain that the RRT did so. This ground is argumentative as to the RRT’s conclusion that the applicant’s fears were not well founded, and in substance seeks merits review.
As there is no arguable jurisdictional error in the RRT’s decision it is strictly unnecessary to discuss the effect of Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 or s 474 of the Migration Act 1958. However the distinction between jurisdictional and non-jurisdictional errors remains: Linett v McIntyre (2002) 117 FCR 189 (FC) at [5], [30-35], [86-87]; Re Minister for Immigration; Ex parte Lam (2003) 195 ALR 502 at [77]; Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [59]. The RRT was plainly addressing the right question, and the applicant’s complaints can at most concern the weight given to evidence before it, which cannot be a jurisdictional error: Linett.
The application should be dismissed with costs.
In his oral submissions, Mr Reilly emphasised that the Court cannot infer a failure to have regard to particular evidence simply because the decision of the RRT is silent in respect of that evidence. Mr Reilly pointed out that on pages 5 and 6 of the RRT decision: court book, pages 98-99, the presiding member set out the relevant evidence. Further, he submits that it is apparent from page 8 of the decision (court book, page 101) that the relevant country information was taken into account. Mr Reilly submits that it is clear from the correspondence from the applicant’s solicitors dated 28 February 2000 (court book, page 56) and the newspaper articles commencing on page 57 of the court book, that the relevant issues of political violence in Bangladesh were before the RRT. He submits that it is also clear from the transcript of the hearing (in particular, between pages 15 and 19) that the presiding member understood the issues and discussed them with the applicant. Mr Reilly submits that the applicant failed to make clear precisely what his fear of harm was should he return to Bangladesh and any imprecision in the presiding member’s reasons needs to be compared with the lack of precision in the applicant’s claims. He submits that in reality the applicant is seeking merits review. He submits that viewed as a whole, the presiding member’s reasons show that she concluded that it would be safe for the applicant to participate in political life in Bangladesh to the same level as he did prior to coming to Australia.
Delay
I invited further submissions from the parties, noting that the RRT decision was made in December 2001 and the application for review was not filed until April 2003. The applicant presented additional evidence in the form of an affidavit filed on 3 March 2004 in relation to this question on. The relevant points are as follows:
·following the decision of the RRT on 3 January 2002, the applicant’s lawyer made a request for Ministerial intervention under s.417 of the Migration Act;
·the applicant, through his lawyers, then commenced proceedings in the High Court challenging the validity of s.474 of the Migration Act;
·those proceedings were discontinued on 10 April 2003;
·the applicant then gave instructions to his present solicitor and the present proceedings were commenced on 17 April 2003.
Mr Reilly responded by way of written submissions filed on 12 March 2004. He states that:
These submissions address the discretionary refusal of the application on the basis of the applicant’s delay in bringing it.
The applicant has filed evidence that he institute proceedings in the High Court challenging the constitutionality of s.474 of the Migration Act on 23 August 2002 and consented to the dismissal of those proceedings on 10 April 2003.
Those facts do not provide an adequate explanation for the applicant’s delay in bringing this application. The delay of over eight months between the handing down of the RRT’s decision on 18 December 2001 and the institution of proceedings in the High Court on 23 August 2002 remains entirely unexplained. Moreover there is no reason why the applicant could not have brought proceedings in this or another court challenging the decision of the RRT concurrently with his High Court proceedings.
The delay should lead the Court to refuse relief in its discretion: SZAJA v Minister for Immigration [2004] FMCA 73 (Driver FM).
Reasoning
I accept Mr Reilly’s submission that the third respondent, the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs is not a proper respondent to the application. Neither is the first respondent, the Refugee Review Tribunal, a proper or necessary respondent. The RRT is not and should not be a participant in proceedings for judicial review of its decisions, any more than the Administrative Appeals Tribunal is a participant in appeals on questions of law from decisions of that tribunal. It is unnecessary for a tribunal to be a party to judicial review proceedings, even as a matter of form. In any event, s.479 of the Migration Act prescribes who the parties to a judicial review proceedings are. The only proper respondent is the Minister. The section refers to the review of privative clause decisions but nothing of any practical significance turns on that. Even if the decision were not a privative clause decision, resulting in relief in the nature of constitutional writs being directed to the RRT, it would be unnecessary for anyone other than the Minister to be a respondent.
I agree with and accept Dr Churches’ submissions concerning the general principles relevant to a consideration of grounds 1 and 2 of the amended application. The grounds are related in as much as they point to a single category of jurisdictional error. However, I do not accept Dr Churches’ submissions that jurisdictional error has been established in this case pursuant to these two grounds. The first claim, that the RRT overlooked a relevant consideration in failing to consider the Hotline newsletter and US State Department report, is not supported by the record of the RRT decision. The presiding member referred extensively to country information concerning violence in Bangladeshi politics on pages 10-13 of her decision. That country information included the US State Department report on human rights in respect to the year 2000. It does not appear to me that the Hotline newsletter of 14 December 1999 dealing with political violence associated with Hartals added anything to the country information specifically referred to by the RRT. In any event, for the purposes of considering whether there was a constructive failure of jurisdiction by reason of a failure to take into account a relevant consideration, the issue is not whether the RRT overlooked a particular item of evidence in its consideration but, rather, whether the RRT considered the issue raised in that evidence. The relevant issue was the violence of Bangladeshi politics and the involvement of the BNP and the Awami League in that violence. The presiding member did not seek to contest the country information which made clear that a high level of violence is associated with Bangladeshi political activity and that the BNP and the Awami League were both involved, either as victims or perpetrators. A fair reading of the presiding member’s findings and reasons establishes that she accepted that information. The issue was not overlooked by the presiding member. On the contrary, it was central to her consideration of the applicant’s claims.
The second ground of review likewise fails. Even if one accepts that it was an element or integer of the applicant’s claims that a friend of his had been killed (and I doubt that it is correct to characterise this item of the applicant’s evidence as an element or integer of his claims) the claim was taken into account by the RRT. The real complaint the applicant has with this aspect of the presiding member’s reasons is the way she described the claim and the weight apparently given to it. The presiding member said (at page 13 of her reasons: court book, page 106):
I accept that there was a conflict in the applicant’s residence between opposing factions of the Chattra Dal, in which some of the applicant’s friends were injured.
It is possible that the presiding member had forgotten that the applicant was asserting that one of his friends was killed. It is also possible that she did not accept the accuracy of that claim. Whether or not the presiding member was mistaken as to the relevant fact the important issue for her was not what happened to the applicant’s friends but what happened to the applicant. The presiding member stated:
I accept that the applicant was detained and physically mistreated when his university premises were searched for illegal weapons. However there is no evidence before me to suggest that the applicant was of any ongoing interest to the police as a result of this or any other incident.
In other words, while the presiding member accepted that the applicant had personally suffered harm as a result of the incident recounted, she did not accept that there was a Convention nexus with that harm. I see no jurisdictional error in the approach taken by the presiding member.
Dr Churches, in his submissions, also attacks the following finding by the presiding member concerning the applicant’s claim of being threatened by an Awami League supporter as a result of a political campaign:
I accept that the applicant was threatened by an Awami League supporter after he campaigned for an unsuccessful candidate. However, the applicant claimed that he continued to be involved in political activities. He did not claim and the evidence does not suggest that the Awami League harmed him either because of his involvement in this particular election or at all.
Again, it does not appear to me that there was any failure on the part of the RRT to consider the applicant’s claim. To the extent that this aspect of the presiding member’s reasons is relevant to an asserted jurisdictional error, it seems to me that it could only be relevant to the third ground of review.
The third ground of review is that the RRT asked itself the wrong question. It was part of the presiding member’s reasoning that, although the applicant had been a witness to political violence and had at times suffered harm himself, he was personally committed to peaceful political activities and the country information indicated that it was possible to be involved in the political process peacefully. The asserted error is that the RRT should have asked itself the question whether there was a real risk that the applicant would suffer serious harm in the political activity he chose to pursue, not whether it was possible for the applicant to avoid harm. In my view, this asserted error misconstrues the approach taken by the RRT. The presiding member said:
I note the applicant’s evidence that he is personally committed to peaceful political activities. The independent evidence before me indicates that it is possible to be involved in political activities in Bangladesh without being a perpetrator or a victim of violence. In my view, the applicant would be able to return to Bangladesh and participate in political activities to the same level as he did prior to coming to Australia without being at risk of persecution. I accept that the applicant would not be able to get back his previous political position. However, I am not satisfied that this would amount to persecution for a Convention reason.
The independent evidence taken into account by the presiding member included the evidence establishing that the applicant’s political party, the BNP, had recently won a landslide victory in Parliamentary elections. This was a material change to the political situation in Bangladesh and it was reasonable and proper for the RRT to take it into account. In addition, the presiding member had already found a lack of a Convention nexus with harm that the presiding member had accepted the applicant suffered while he was in Bangladesh. A fair reading of the presiding member’s reasons establishes that the presiding member found that the applicant would not be at risk of persecution for a Convention reason should he return to Bangladesh and resume his former political activities. There was no failure on the part of the RRT to consider whether the applicant faced a real risk. On the contrary, the presiding member found that the applicant was not at any risk for a Convention reason. In my view, the presiding member did not ask herself the wrong question and the conclusion she reached was reasonably open to her on the material before her. I find that this ground of review is not made out.
I find that no jurisdictional error in the decision of the RRT has been established. Accordingly, the decision of the RRT is a privative clause decision and the application must be dismissed. Moreover, the objection to the competency of the application must be allowed, having regard to the time limit of the institution of judicial review proceedings in s.477 of the Migration Act.
If I am wrong in my decision on the lack of any jurisdictional error in the decision of the RRT, I would not refuse relief in the exercise of my discretion on the grounds of delay. The applicant instituted proceedings in the High Court challenging the validity of s.474 of the Migration Act within 12 months of the decision of the RRT. The High Court Rules provide for the institution of judicial review proceedings under s.75(v) of the Constitution within 12 months of the decision subject to review. There was no point in the applicant instituting other judicial review proceedings until the issue of the validity of s.474, put in issue by the applicant, had been determined. The High Court proceedings were properly discontinued on 10 April 2003, following the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24. The applicant then acted promptly to institute these present proceedings. It follows, in my view, that the applicant should not be denied relief on the grounds of delay in the exercise of the Court’s discretion. In addition, in my view, the earlier request for Ministerial intervention made by the applicant under s.417 of the Migration Act could not be taken as a representation that there would be no further judicial review proceedings, in the light of the proceedings instituted in the High Court.
On the question of costs, costs should follow the event in this case. The Minister has had to deal with an original and amended application and had to provide supplementary submission on the question of the Court’s discretion to refuse relief. The issues raised in the amended application are issues of substance and it was reasonable and proper for the Minister to be represented by counsel. I assess costs in this matter on a party/party basis in the sum of $5,000.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 23 April 2004
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