SZAJW v Refugee Review Tribunal
[2004] FMCA 113
•26 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAJW v REFUGEE REVIEW TRIBUNAL & ORS | [2004] FMCA 113 |
| MIGRATION – Review of RRT decision – whether Tribunal fell into jurisdictional error by failing to address correct issue and /or ask the correct question – whether Tribunal considered whether there was a real chance that the applicant would be persecuted for reason of political opinion – where absence of past persecution used to consider risk of future persecution. |
Chan v The Minister (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259
| Applicant: | SZAJW |
| Respondent: | REFUGEE REVIEW TRIBUNAL & ORS |
| File No: | SZ 592 of 2003 |
| Delivered on: | 26 February 2004 |
| Delivered at: | Sydney |
| Hearing date: | 26 February 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Dr S Churches |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Solicitors for the Respondent: | Australian Government Solicitors |
ORDERS
Application dismissed.
The applicant to pay the respondent's costs assessed in the sum of $3000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 592 of 2003
| SZAJW |
Applicant
And
| REFUGEE REVIEW TRIBUNAL & ORS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh. He arrived in Australia on
5 December 1998. On 29 June 1999 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs. On 16 July 1999 a delegate of the Minister refused to grant a protection visa and on 10 August 1999 the applicant applied for a review of that decision. The Refugee Review Tribunal provided the applicant with an opportunity to appear before it, which he did, and on 26 November 2001 it made its determination to affirm the decision not to grant a protection visa. The decision of the Tribunal was handed down on 18 December 2001. The document which normally forms the court book in these proceedings was in fact prepared by the applicant as an exhibit to an affidavit of Michaela Gay Byers of 2 September 2003 but for the sake of convenience I shall refer to it as the court book [CB].
At [CB 30] there commences a statutory declaration by the applicant. He is a single man who lived in a suburb in Dacca at his parents' home until he came to Australia in December 1998. He completed secondary schooling. He obtained a bachelors degree in commerce and then a masters in finance and banking. He had a position in a textile company before leaving Bangladesh. Like many of his colleagues, the applicant was politically active. He was a supporter of the BNP and joined its student wing whilst at university. When he finished he joined the Jubo Dol, the youth wing, and became active in the branch in his local area.
The applicant explained that political violence was a way of life in Bangladesh and gave a history of violent conflict between the Awami League who were then in power and members of the BNP. He says in paragraph 6 of his statutory declaration that he began to receive personal threats from Awami League activists who told him to stop his activity and he had a particular problem with the local ward commissioner. The applicant also stated that a personal friend of his had been found dead. He was a member of the BNP who had been threatened by Chattra League activists. Another friend of the applicant had been killed in a gunfight in 1996.
The applicant claimed that because of his political activities he was known to the police in his area but he had never been arrested. He feared that if he was arrested he would be brutalised.
When the matter came before the Tribunal the applicant gave evidence along the lines that I have just set out. The Tribunal notes at [CB 102]:
“At the hearing the applicant did not suggest that he personally received any threats to cease being involved in politics and only mentioned one occasion on which his father received a threat related to his (the applicant's) political activities. Regardless of whether the applicant and/or his father received one threat or several, the applicant did not claim that he had actually been harmed because of his political activities, either by the local Awami leader or by anyone else. The applicant's evidence did not suggest that he ceased being involved in politics because of any threats he received. I note also that the applicant lived in the family home at his parents until he left Bangladesh for Australia. In my view, if a local Awami League leader or anyone else wished to harm the applicant, they had ample opportunity to do so before he left Bangladesh.”
The Tribunal accepted in general the evidence of the applicant and certain country information which indicated that the political situation in Bangladesh was marred by violence. However, it came to the view:
“If the applicant returned to Bangladesh, he would be able to express his political opinion without being involved in violent political activities. I am of the view that the chance that he would face persecution if he did so is remote and insubstantial.”
The Tribunal then concludes with the finding that there was nothing in the evidence before it from which it could conclude that there was a real chance that the applicant would be of any adverse interest to the police in the reasonably foreseeable future because of his political activities.
These proceedings are being heard pursuant to an amended application which was filed in court today although it had been previously communicated to the respondent. The grounds of the application are:
(1)The Tribunal erred in law going to the performance of its jurisdiction by failing to address the correct issue and/or to ask the correct question.
Particulars
“On the evidence and claims raised by the applicant, the question which the Tribunal had to answer was whether there was a real chance that the applicant would be persecuted in Bangladesh for reason of his political opinions. This the Tribunal has not done and hence its statutory function has not been performed.”
During the course of the hearing before me Mr Churches, who appears on behalf of the applicant, appeared to be making an additional allegation that the applicant had a fear of persecution from intra party rivalry amongst the BNP. This seems to have arisen as a result of a question put by the Tribunal to the applicant which Mr Churches pointed out to me in the transcript that was annexed to a notice to admit facts and has become part of the evidence before me.
I have three problems with this submission. The first is that it was not particularised in the amended application, which I am prepared to overlook. The second is that it did not form part of the applicant's statutory declaration upon which his claims for asylum were made and the third is that I do not understand how it can be argued that the Tribunal did not consider a matter which it raised with the applicant and which the applicant had not raised with it. It may have decided that the concern which it raised was not one which would lead it to the state of satisfaction required by the Migration Act and if it did that it was not required to make any further comment upon it. I do not believe that there is any force in the argument raised by Mr Churches.
Mr Churches states that the Tribunal did not properly apply the "real chance test" which was formulated by the High Court in Chan v The Minister (1989) 169 CLR 379. At [12] the Chief Justice says:
“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 a notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is the expression which has been explained and applied in Australia, see the discussion in Boughey v The Queen (1986) 161 CLR 10 at page 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 50 percent 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.”
In accordance with the usual practice in the Refugee Review Tribunal it's findings and reasons commence with a discussion of the definition of refugee and includes a paragraph recognising that an applicant's fear of persecution must be a well-founded fear and that a well-founded fear arises if the applicant has a genuine fear founded on a real chance of persecution for a convention stipulated reason. It is clear that the Tribunal had this in mind when making its decision in this case. At page 12 of its reasons [CB 103] it states:
“In my view if the applicant returned to Bangladesh, he would be able to express his political opinion without being involved in violent political activities. I am of the view that the chance he would face persecution if he did so is remote and insubstantial.”
It seems to me that the use of the words "remote and insubstantial" echo the words of the Chief Justice in Chan which I have previously extracted. The Tribunal appears to have come to this view after assessing the evidence concerning the applicant's past history. That past history did not reveal any personal persecution of the applicant or that any harm had come to him. The Tribunal appears to have utilised the history to come to a view about the future and in this was assisted by the country information which was before it.
Using the past to predict the future may be a form of historicism criticised by some of the greatest modern philosophers but it has, to my mind not unreasonably, found favour with the High Court where it is dealt with in some detail in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 578. If a Tribunal adopts this approach which I believe this Tribunal has done then it is not for me to refute that conjecture.
I take the view that this Tribunal adopted a correct approach to its assessment of the applicant's claims. I am satisfied that in making its decision as to whether or not the applicant had a well-founded fear of persecution for Convention reasons it adopted so much of the Chan test as is still relevant today (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 at 274). I must therefore dismiss the application and order the applicant to pay the respondent's costs. I assess the costs in the sum of $3000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
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