SZAJX v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1007

FEDERAL COURT OF AUSTRALIA

SZAJX v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1007

SZAJX V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 497 OF 2004

BEAUMONT J
6 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 497 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAJX APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	6 AUGUST 2004
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 497 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BEAUMONT J
DATE:	6 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

BACKGROUND

1. This is an appeal from a judgment of Jarrett FM, delivered on 22 March 2004, which dismissed the appellant’s application for review of a decision by the Refugee Review Tribunal (‘Tribunal’) made on 18 September 2001 (handed down 9 October 2001) refusing the grant of a protection visa.  The appellant is a Bangladeshi citizen, who arrived in Australia on a student visa on 11 September 1998 and lodged an application for a protection visa on 21 May 1999, claiming to fear persecution for reasons of his political opinion.  His claim was based upon being a former member of the Bangladesh National Party (‘BNP’).

   THE DECISION OF THE TRIBUNAL

2. It will be necessary to explain the process of reasoning adopted by the Tribunal more fully later in considering conclusions on this appeal, but the Tribunal’s decision may, for immediate purposes, be summarised as follows:

3. Three broad claims were identified by the Tribunal:  (i) if the appellant returned to Bangladesh he would, by reason of his past involvement in politics, be seen as a political activist and therefore still face harm at the hands of his political opponents, the Awami League (‘AL’), who now control the government;  (ii) even if he withdrew from politics, he would nonetheless be at risk of harm from his political opponents because of the political activities of two of his brothers;  and (iii) if he returned to Bangladesh and withdrew from politics, as he intended to do if returned, he would suffer harm from his political allies because his party colleagues would expect him to be involved in their activities and would consider him a traitor if he did not join up with them again.

4. The Tribunal accepted that the appellant was a Bangladeshi national and a member of the BNP.

5. However, the Tribunal further found that –

   ·There was no evidence to support the appellant’s claims that merely by withdrawing from politics, one is in danger from one’s former colleagues, stating:  ‘the independent evidence indicates that violence is endemic in Bangladesh politics but … this violence is directed by political supporters of one allegiance against political supporters of opposing allegiances’.

   ·It was highly implausible that the appellant was well known to ‘all the top leaders’ and that because they wanted him to become more involved, his going overseas would have been viewed as ‘disobedience’, and so they would wish to punish him for this.

   ·As the appellant has now been outside the country for over three years, there would be no reason for him to be seen as an activist, if indeed he has not been active for the past three years, and does not resume his political activities upon return to Bangladesh.

6. The Tribunal noted the absence of any claim that the appellant’s other brothers, who are not politically involved, have been attacked at all and further found that since the appellant does not intend to become involved in politics again, there is ‘no reason why he should be in any more danger than his other brothers who have not been attacked’.

7. Accordingly, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution.

   APPLICATION TO THE FEDERAL MAGISTRATES COURT

8. The appellant sought judicial review of the Tribunal’s decision.  In the grounds in his application to the Federal Magistrates Court, the appellant stated the following:

   ‘1.The [Tribunal] in its decision … in breach of the rules of procedural fairness took into account material directly relevant and adverse to the [appellant’s] claim of refugee status without giving him notice of the material or any opportunity to address it.

   2.   The [Tribunal] during the hearing of the review of the decision of the delegate of the [Secretary of the Department] in breach of the rules of procedural fairness failed to put to the [appellant] such country information as the [Tribunal] proposed to rely upon in coming to a decision adverse to the [appellant].

   3.   The [Tribunal] in its decision … in breach of the rules of procedural fairness relied in an impermissible way upon certain submissions of the [Secretary of the Department] relevant to the review by the [Tribunal] of the decision of the [Secretary of the Department].

   4.   The [Secretary of the Department] failed to provide the [Tribunal] documents or part of documents in the possession or control of the [Secretary of the Department] relevant to the review by the [Tribunal] of the decision of the [Secretary of the Department] and upon which the [Tribunal] did rely in its decision … .’

   DECISION OF FEDERAL MAGISTRATE JARRETT

9. Before Jarrett FM, grounds 3 and 4 were abandoned by the appellant who sought to pursue three additional grounds.  Thus, the appellant claimed:

   (a)The Tribunal did not accord the appellant procedural fairness.

   (b)The Tribunal had applied the wrong test to determine whether the appellant’s fear of persecution for a Convention reason was well founded. 

   (c)The Tribunal had asserted that the appellant could give up his previous political activity or behave ‘reasonably’ and that if he did so, he would not be subject to persecution in Bangladesh. This, it was said, was an impermissible approach by virtue of the reasoning in the judgment in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112.

   (d)The Tribunal found the appellant’s claims of the violence to which he would be subjected if he returned to Bangladesh to be implausible, however there was no evidence to contradict these claims.

10. With respect to the procedural fairness issue, the Federal Magistrate did not accept that the Tribunal had misunderstood the evidence, holding that the evidence identified by the appellant did not seem to be against his case.  The Federal Magistrate accepted the Minister’s submission that there was simply no country information of which the Tribunal was aware that supported the claim made by the appellant.

11. Accordingly, the Federal Magistrate found that there was no need for the evidence identified to be brought to the appellant’s attention for comment. 

12. As to whether the ‘wrong test’ was used, the Federal Magistrate found that the Tribunal did not fail to apply the ‘real chance’ test, nor did it apply another reasoning process reliant on motive, citing Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 272) that ‘the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’.

13. Regarding the submission based upon Appellant S395, the Federal Magistrate stated that the Tribunal did not approach its task in the manner claimed by the appellant.  Rather, the Tribunal’s approach accorded with the appellant’s own evidence that he no longer wished to be associated with politics in Bangladesh.

14. Finally, Jarrett FM found that the finding of ‘implausibility’ was open to the Tribunal.  It was not bound to accept the claims made by the appellant, and the country information claimed to be supportive of the appellant’s case did not support a finding that a person will be persecuted by former political colleagues if he chooses to withdraw from politics altogether. 

    NOTICE OF APPEAL

15. By his Notice of Appeal, filed on 8 April 2004, the appellant contends, in essence, as follows:

    (a)The independent country information does not support the Tribunal’s assertion that the violence in Bangladesh ‘is directed by political supporters of one allegiance against political supporters of opposing allegiances’.  In so far as that information supported the Tribunal’s assertion, such information should have been put to the appellant for comment.

    (b)The Tribunal did not apply the ‘real chance’ test.  In asking the wrong question, the Tribunal took into account an irrelevant consideration.

    (c)There was no evidence to support the Tribunal’s finding of ‘implausibility’ regarding intra-party violence.

    CONCLUSIONS ON THE APPEAL

16. Given its timing, the Tribunal’s decision is a ‘privative’ one, so that the appellant must demonstrate a jurisdictional error.

17. In order to understand the issues which, in truth, arise in the appeal, it will be necessary, as mentioned earlier, to explain the Tribunal’s process of reasoning more fully as follows:

    The Tribunal’s process of reasoning

18. The appellant said that he first became involved with the BNP in high school, and he participated in general demonstrations on behalf of the BNP against the former military dictator government, which fell from power in December 1990.  Subsequently, the appellant was involved in the local youth branch of the BNP, where he took part in various party activities, including attending meetings, helping to attract other new members, canvassing for votes, and taking part in street demonstrations on behalf of the party.  After the BNP lost the election in June 1996 to the AL, the appellant took part in demonstrations against the new government.  The AL ‘started to exact its revenge on BNP supporters’, and the appellant witnessed various party friends being beat up by the police and by activists from other parties. 

19. The appellant’s brothers are, he said, well known activists in the BNP party and have many political enemies.  Two of his brothers remain involved in the BNP, one as an area executive member.  Opposition party supporters have attacked the more politically active brother, but he has been able to defend himself.  The other brother involved in the BNP has also been attacked, and was able to fend off his attackers with assistance from the brother that is more senior in the BNP.

20. The appellant stated that he is well known as a BNP party activist, and is afraid that he will be persecuted if he returns to Bangladesh.  The appellant was pushed to be involved in ‘an upper level of politics’ before coming to study in Australia, and left because he was becoming disillusioned with the BNP party.  Although now away for three years, the appellant stated it would be difficult for him not to be involved again in BNP politics if he returns to Bangladesh because of his past involvement with the party, and he would be considered to be a traitor by his old allies, were he not to rejoin. 

21. However, if the appellant does become involved again with the BNP, he believes he risks persecution from the government.  He stated that Bangladesh has experienced continued political instability since the June 1996 elections.  Widespread political violence exists, such as arrest and detention of BNP activists, as well as violent confrontations and deaths at the hands of members and supporters of the government political party, and agents of the state including the police and army.  In addition, the appellant stated that private citizens with vendettas against others are frequently turning to oppressive mechanisms of the state such as the Special Powers Act, and the use of the corrupt magistracy and lower judiciary, as a tool of political oppression. 

22. The appellant stated that internal relocation in Bangladesh to avoid persecution is not an option, because the police are corrupt throughout the country, the government continues to restrict and deny fundamental rights including the use of national security laws to detain political opponents and citizens without formal changes, and the police routinely use torture and other forms of mistreatment in interrogating suspects.  Because of the ‘small nature of Bangladesh society’, the people that move in Bangladesh are easily traceable.

23. Whilst Bangladesh is a multi-party parliamentary democracy, the Tribunal noted from the independent evidence that many fundamental human rights are routinely restricted or denied.  National security laws are used to detain political opponents of the government and other citizens without formal charge, and violence is a ‘pervasive element’ of the political process used by both the opposition and ruling parties.

24. However, the Tribunal noted in the independent evidence that there was ‘no sign of political repression on a scale that would make it difficult for opposition party members to continue to live and take an active role in politics in Bangladesh’, and ‘politicians who engage only in legitimate political activities and advocacy usually have little or nothing to fear from rival political groups’.

25. The Tribunal held that the independent evidence stated that clashes between the BNP and the AL would continue to be a constant feature of Bangladeshi life.  Furthermore, violence generally ‘pervades many aspects of Bangladeshi society’, including vigilante violence against criminals by private citizens, and vigilante killings by mobs.

26. The Tribunal accepted that the appellant was a Bangladeshi national and (although ‘politically active’) ‘merely’ a member of the BNP, and his brothers were also politically active.  But the Tribunal accepted that the appellant is now alienated from Bangladesh politics and does not wish to play an active role in politics. 

27. The Tribunal found no evidence to support the appellant’s claims that withdrawing from BNP politics puts him at risk of danger from his former political allies.  Although the independent evidence indicated that violence is endemic to Bangladesh politics, the violence is directed against ‘political supporters of one allegiance against political supporters of opposing allegiances’.  The Tribunal found it remote that a mere member of the BNP would be harmed by current BNP members, since it would not benefit the BNP to punish someone who was no use to the BNP while risking the alienation of the appellant’s politically active brothers from the party. 

28. The Tribunal also rejected the claim that the appellant faced fear of persecution by the AL based on his past political activities with the BNP, as he has been outside the country for three years and thus was not active in the BNP. 

29. The Tribunal further rejected the appellant’s claim that he is at risk of harm by the AL based on the political activities of his brothers because his brother, who is more senior politically, has ‘usually fended off’ the attacks.  Furthermore, his other non-political brothers have not been attacked, so that it was unlikely that the appellant would be attacked, provided he stayed out of BNP political activities.

    Conclusions on the appellant’s first ground of appeal

30. The appellant states this ground as follows:

    ‘1.The material referred to was the various US State Department report;  the report of the American Embassy in Dhaka;  the report of the Economist Intelligence Unit of the Canadian Immigration Refugee board;  and the report of the Australian High Commission in Dhaka referred to at pages 10 – 12 (CB – 91-93 of the decision of the tribunal asserted in FINDINGS and REASONS that “all the reports indicate … this violence is directed by political supporters of one allegiance against political supporters of opposing allegiances (CB 94.2).  In so far as the named reports are available in the Court book, they do not make out the Tribunal’s assertion, and indeed appear to be contrary to it eg CB 155.6 Sate Department Report on Bangladesh for 2000).

    In so far as the reports referred [sic] to in Paragraph 1 above supported that claim, the[y] should have been submitted to the Applicant for comment, as the[y] were contrary to his claim (Statutory Declaration 31 August 2001.  CB 73.3, Transcript 8.2-4) that he would suffer persecution from former political allies if he removed himself from politics.”’

31. In my opinion, no jurisdictional error is indicated on this material.  The questions are factual, not legal.

32. Nor was there any denial of procedural fairness, for the reasons given by Jarrett FM as follows:

    ‘9.The first two grounds specified in the application alleged that the Tribunal did not accord the applicant procedural fairness.  The submission was that certain material before the Tribunal and which the applicant apprehends was against his case, was not put to him for comment, as it should have been.

    10.The material the applicant alleges should have been submitted to him was a report of the U.S. Department of State released on or about 23 February, 2001.  In that report the following appears:

    “Violence also is endemic between the student political wings of the major national parties, and between rival factions within the parties …”

    There then follows an example of intra-party violence that took place in July of 2000.

    11.It was submitted to me that the Tribunal acted on the basis that the political violence in Bangladesh only took place between opposing political parties.  So much is said to appear from the sentence “Certainly the independent evidence indicates that violence is endemic in Bangladesh politics but all the reports indicate that this violence is directed by political supporters of one allegiance against political supporters of opposing allegiances.” that I have extracted above.

    12.It was submitted that the Tribunal misunderstood the evidence from the relevant report and that the evidence from the report I have extracted above supported the applicant’s claim that he would be subjected to violence from his own political allies.   It was submitted that because the Tribunal failed to understand that evidence, it failed to properly appreciate its impact upon the applicant’s case and the importance that it be put to him for comment.

    13.I do not accept that the Tribunal has misunderstood the evidence contained in the relevant report extracted above.  That evidence does not seem to me to be against the applicant’s case.  The evidence establishes that there is intra-party violence between factions of the same party – or allegiances to use the words of the Tribunal.  The applicant’s case was never that he would be subjected to intra-party violence from opposing factions, but rather violence from party members generally because of his desire to no longer involve himself in politics.  The evidence pointed to by the applicant in support of these grounds does not bear one way or the other on that issue.

    14.The Tribunal’s finding was that there was no evidence to support the applicant’s claim that merely by withdrawing from politics one is in danger from one’s former colleagues.  The evidence that the applicant has specifically isolated was not contrary to the applicant’s.  I accept the respondent’s submission that there was simply no country information of which the Tribunal was aware that supported the claim made by the applicant.

    15.In my opinion, there was no need for that evidence identified by the applicant to be brought to his attention for comment by him.  I do not consider that the applicant has been denied procedural fairness by reason of the matters raised in grounds one and two of his application.’

1. I agree.

   Conclusions on the appellant’s second ground of appeal

2. This ground is stated as follows:

   ‘2.The Tribunal stated … that it “cannot imagine what benefit it would be to those he claims to fear to “punish” someone who would not want to become involved and hence would not be of use to the party.”  In adopting this approach, the Tribunal has chosen a reasoning process, reliant on motive.  Such an approach is wrong at law, as the applicant put on evidence to his well founded fear of persecution on this basis … .

   The correct test in the work of the tribunal is to perform the “real chance” test (see Chan (1989) 169 CLR 379 at 389 per Mason CJ):  is there a real chance (which may be lower than 50%) of the applicant suffering persecution for a Convention reason?  The Tribunal has not done that in respect of a critical claim and evidence from the Applicant.  The error of law involved asking itself in the absence of apparent evidence controverting the Applicant’s evidence, why a person would suffer such persecution:  see Yusuf (2001) 206 CLR 323 at [82] to [85], and N 1202/01 A v MIMIA (2001) 68 ALD 21 at 35 [49] and 37 – 8 [57] per Lee, Moore and Madgwick J.J.’

3. Again, in my view, no jurisdictional error emerges here.

4. Jarrett FM said:

   ‘16.The third ground relied upon by the applicant was that the Tribunal had applied the wrong test to determine whether the applicant’s fear of persecution for a Convention reason was well founded.  It was argued that the Tribunal adopted a reasoning process based upon “motive” rather than applying the “real chance” test.  It was submitted that the incorrect approach was revealed in the sentence: “The Tribunal cannot imagine what benefit it would be to those he claims to fear to ‘punish’ someone who would not want to become involved and hence would not really be of use to the party”.

   17.In its reasons, the Tribunal expressly referred to the tests to be applied in determining the applicant’s review.  In particular, the Tribunal referred to the tests set out in Chan v Minister for Immigration (1989) 169 CLR 379. Specifically, the Tribunal said:

   Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well founded’ fear.  This adds an objective requirement to the requirement that an applicant must in fact hold such a fear.  A person has a ‘well-founded fear’ of persecution under the Convention if they have a genuine fear founded upon a ‘real chance’ of persecution for a convention stipulated reason.  A fear []is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation.  A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%.”

   18.In my opinion the Tribunal has not failed to apply the real chance test, nor has it applied another reasoning process reliant on motive to determine the applicant’s claims on this matter.  The statement complained of by the applicant is nothing more than a statement made by the Tribunal in an effort to objectively assess whether a real chance of persecution existed.  Perhaps it is not expressed as well as it might have been, but I bear in mind the words of the High Court of Australia in MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272:

   31.      These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin (26):

   ‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’’

5. I agree.

   Conclusions on the appellant’s third ground of appeal

6. In this ground, the appellant contends:

   ‘3.The error of law in asking the wrong question has caused an irrelevant consideration, curiosity as to why persecution might occur rather than using established tests on available evidence.’

7. This ground is, in truth, an attempt to develop ground 2.  For similar reasons it cannot, in my view, succeed.

8. In any event, as was submitted for the Minister –

   ‘[I]f one looks to the findings of the Tribunal it is clear that the Tribunal did consider whether the appellant faced a real chance of persecution from his former political colleagues.  In assessing this issue the Tribunal concluded that, in light of the appellant’s evidence his fear of harm was unfounded and the chance that he would be harmed if he returned to Bangladesh and resumed his life without involving himself in politics was remote.’

9. I agree.

   Conclusions on the appellant’s fourth ground of appeal

10. Here, the appellant (finally) contends:

    ‘4.The Tribunal made a finding of “implausibility” regarding intra-party violence … .  The Applicant made his claims in this respect, and there is no material indicating to the contrary, and the State Department Report for 2000 is supportive of the Applicant (see paras 2 and 3 above).  There appears to be no evidence to support the tribunal’s finding, and in that situation N 1202 is authority to the Applicant’s advantage.’

11. These are factual inferences only, without demonstration of jurisdictional error.

12. As Jarrett FM said:

    ‘22.The fifth ground argued before me was that the Tribunal made a finding of “implausibility” regarding the violence to which the applicant claimed he would be subjected if he returned to Bangladesh.  I have referred to the relevant finding above.  It was submitted that the applicant made his claims in this respect and there was no material to the contrary.

    23.The Tribunal, however, was not bound to accept the claims made by the applicant.  It was submitted that the material from the U.S. State Department supported the applicant’s claims.  For the reasons I have given above, I do not think that the State Department material could have assisted the applicant’s case. 

    24.The country information the applicant claims to be supportive of his case is information regarding violence between student political wings of the major national parties and between rival factions within those parties.  It does not support and, in my opinion cannot support, a finding that a person will be persecuted by former political colleagues if he chooses to withdraw from politics altogether.  The finding made by the Tribunal was reasonably open to it on the evidence before it.

    25.In my opinion the Tribunal has considered the issue raised by the applicant and found against him on it.  This ground seeks to review a finding of fact made by the Tribunal without any attendant error of law.’

    ORDERS

13. It must follow that the appeal must be dismissed, with costs.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:            6 August 2004

Solicitor for the Appellant:	Michaela Byers
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 July 2004
Date of Judgment:	6 August 2004