SZAQV v Minister for Immigration

[2004] FMCA 187

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAQV v MINISTER FOR IMMIGRATION [2004] FMCA 187

MIGRATION – Judicial review – refusal of protection visa – whether the Tribunal failed to take into account relevant consideration or failed to determine a material claim – whether bias or bad faith. 

Migration Act 1958

Minister for Immigration and Multicultural Affairsv Yusuf (2001) 206 CLR 323
Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244
SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 195 ALR 749
Re Refugee Review Tribunal, Ex parte H (2001) 179 ALR 425
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1998) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989-90) 169 CLR 379

Applicant: SZAQV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ908 of 2003

Delivered on: 7 May 2004

Delivered at: Sydney

Hearing date: 16 March 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondent: Ms RM Henderson

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. That the application is dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ908 of 2003

SZAQV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The Applicant is a citizen of Bangladesh who left Bangladesh on

   
   

   8 January 1998, travelled to the United Arab Emirates where he remained until 26 July 2001 and then entered Australia on 28 July 2001.  On 24 August 2001 he lodged an application for a protection visa.  That application was refused on 31 January 2002.  An application to the Refugee Review Tribunal made on 4 March 2002 was refused in a decision handed down on 29 April 2003.  That decision is the subject of the current application for judicial review. 

2. In his original application the applicant claimed to be a member of the Jatiya (or Jatio) Party in Bangladesh, to have demonstrated against the BNP Government and to have been mistreated by the police.  He claimed to fear persecution by the BNP Government if he returned to Bangladesh and that he would be put in jail and punished because he was a member of the Jatiya Party.  In the protection visa application the applicant indicated that the reason he left Bangladesh was as follows:

   I joined Jatiya Party in 1992.  I joined with the local party organisation in various demonstration against the BNP Government for several times.  I was mistreated by the police.  BNP Government (Police) wanted to persecute me and I finally I managed to escape to UAE in 1998.  I worked there as a cook.  In UAE its all up to the sponsor to extend the stay visa and I didn’t find any system of asylum protection.  If I return to Bangladesh I will be punished and put in jail.  I arrived in Australia and am seeking asylum.

3. On 30 November 2001 a delegate of the respondent wrote to the applicant seeking further information and comment on information as to the current political situation in Bangladesh and other matters.  No response was received from the applicant or his migration agent.  On 31 January 2002 the delegate decided to refuse the application. 

4. The application for review lodged with the Refugee Review Tribunal indicated that the applicant would explain the reasons for his claimed fear of persecution to the Tribunal.  On 4 March 2002 the Tribunal wrote to the applicant asking him to provide any new documents or written evidence at the earliest possible point in the review process.  On 19 February 2003 the Tribunal wrote to the applicant advising that it had considered the material before it in relation to his application but was unable to make a decision in his favour on the information alone.  It invited him to attend a hearing on 7 April 2003.  On 27 March 2003 the applicant’s migration agent provided a written submission, copies of newspaper articles and Amnesty International press releases relating generally to the situation in Bangladesh.  On 4 April 2003 the applicant’s migration agent forwarded to the Tribunal an apparently undated letter from the Jatiya Party Sylhet District Branch with an English translation stating that the applicant joined the Party in 1989, was publication secretary in the branch from 1991 to 1992 and was an active member of the party. 

5. The Tribunal held a hearing on 7 April 2003.  According to the Tribunal reasons for decision the applicant claimed that he went to Dubai because of political problems he was having in Bangladesh.  When asked for details of his claims, the applicant claimed that he had had a quarrel with the opposition and had run away to Sylhet where there was a lot of fighting (he later claimed the quarrel took place in Sylhet) so he then went to Sunampur.  During the hearing the applicant claimed that the opposition had lodged a case against him.  He claimed that he could not confront this so he ran away to Dubai.  He claimed that he had become associated with the Jatiya Party in 1989 and joined the party in the year he became the publication secretary of his branch which had twelve members.  The position was given to him with the consent of the branch members and no money was involved.  The Tribunal recorded that when asked several times what was involved in being the publication secretary, the applicant claimed that he was required to canvass for the Party, and was involved in motivation, persuasion and pointing out the benefits of joining the Party.  The Tribunal stated in its reasons for decision that it made several attempts to elicit comprehensive answers about the goals and objectives of the Jatiya Party but that the applicant demonstrated limited knowledge of the Party. 

6. The applicant claimed that when he was summonsed in relation to the case laid against him he did not appear but went to Dubai and that a verdict of ‘life imprisonment’ had been imposed.  He said that the case had been lodged sometime in 1997 but that he did not remember when and that the main allegation was that he was engaged in violence and did a lot of harm.  Asked whether he had been involved in violence, the applicant replied that nobody died and there was no harm but a false case was still lodged against him.  He claimed that there had been a “discussion” with the BNP which became violent and that they had wanted to kill him.  The applicant thought this had occurred in July 1997 but could not remember the date.  He claimed that the discussion was prompted when seven or eight BNP members came to a Jatiya Party meeting.  A heated discussion ensued and when they threatened to kill him he decided to take up an offer to leave the country.  The applicant claimed that if he returned to Bangladesh he would be killed and the court’s decision was ‘hanging on me’.  Asked why he had not wanted to defend himself in court, the applicant said that the Party and his lawyer advised that it would be better not to ‘go there’.  The Tribunal gave the applicant the opportunity to put any other claims or matters before it. 

7. On 29 April 2003 the Tribunal handed down a decision affirming the decision of the delegate to refuse to grant the applicant a protection visa.  The Tribunal found that many of the claims made by the applicant were vague and general and that key information about some of the claimed incidents (such as dates) was not clear and could not be clarified satisfactorily at the hearing.  It accepted that the applicant became associated with the Jatiya Party in 1989, became a member shortly thereafter and became publication secretary of a small branch of 12 members from 1991 to 1992 as attested to by the letter from the Party.  However on the basis of the information the applicant gave about this position, the Tribunal did not accept that it was a position of influence or standing in the Party or that the applicant held a political profile in his area.  It also found that the applicant had a very limited knowledge of the Jatiya Party and that this was inconsistent with his claims to be the holder of a position in the Jatiya Party.  Given his low profile, the Tribunal was not satisfied that the applicant would be targeted by other political parties.  The Tribunal accepted independent country information that the BNP Government was being ‘neutral’ towards the Jatiya Party.  It was satisfied that there was not a real chance that the applicant would experience serious harm amounting to persecution because of his Jatiya Party membership.  The Tribunal reasons for decision continued in relation to the claimed false charge and sentence:

   The applicant claims that a false charge has been made against him and he has already been sentenced to ‘life imprisonment’.  Asked what he was charged with, and what happened in the alleged incident, the applicant claimed that 7 or 8 BNP members came to one of the Jatio Party meetings in July 1997, there was a ‘discussion’ with  the BNP which became violent and they wanted to kill him, some violence followed, but nobody died and there was no harm: however, he claims that a false charge of being engaged in violence and doing a lot of harm was made against him and he has already been sentenced to life imprisonment.  However, no evidence is provided to support this claim.  For example, the applicant does not provide a copy of an arrest warrant, a first information report, or even letters from colleagues or friends supporting this claim, notwithstanding the Tribunal having made it clear in its hearing invitation letter of 19 February 2003 that on the information before it the Tribunal was not able to make the decision in his favour.  Moreover, the Tribunal accepts that the applicant was able to leave Bangladesh legally for Dubai some six months later (8 January 1998) using his own passport issued in his name without claiming that he was questioned or interrogated or had any other difficulty notwithstanding the fact that, on the face of it, he claims he was wanted on a charge that was so serious that he claims he has subsequently been sentenced to life imprisonment for it.  Further, the Tribunal is satisfied that independent country evidence shows that the Courts are independent in Bangladesh and further finds that they can be relied upon to fairly assess cases even if a governing party’s activist does in fact file false charges. 

8. The Tribunal then referred to independent information in relation to arbitrary use of the Special Powers Act by Bangladesi governments for preventive detention and to settle political scores, to information suggesting that the judiciary was independent and as to court ordered release of detainees.  It accepted that this evidence showed that the courts in Bangladesh were independent and found that :

   … the Applicant could rely on the courts and on the authorities in relation to a false charge or conviction against him.  Accordingly the Tribunal finds ‘that if the applicant were in fact to face a false and politically motivated charge on his return, he would in these circumstances receive fair treatment from the courts in Bangladesh and there is not a real chance that in the course of such a process he will be subjected to serious claim amounting to persecution for a Convention reason”. 

   The Tribunal also found that the claim raised questions about the applicant’s credibility. 

9. The Tribunal considered the applicant’s claim that threats had been made against him by the BNP during the incident in July 1997 and that as a result he feared he would be killed if he returned to Bangladesh.  Given the absence of any claimed harm or threat in the subsequent six months before the applicant left Bangladesh, the time since the threats were made, the applicant’s low political profile and the finding that he would not be targeted by other political parties, the Tribunal was not satisfied that there was a real chance that the applicant would experience serious harm amounting to persecution for a Convention reason on this basis if he were to return to Bangladesh either now or in the foreseeable future.  In conclusion the Tribunal was not satisfied that there was a real chance that the applicant would experience persecution  for a Convention reason if he returned to Bangladesh, either now or in the foreseeable future. 

10. In an amended application filed on 10 March 2004 the applicant claimed that the Tribunal constructively failed to exercise its jurisdiction under the Migration Act 1958. As the respondent submits, the particulars of this ground raise three issues: failure to determine a material claim, failure to take into account relevant considerations, and bad faith (encompassing a claim of apprehended bias).

11. The applicant submitted that the Tribunal failed to determine a material claim put forward by him; namely, “that he had been the subject of a politically motivated charge that has resulted in conviction and a sentence to life imprisonment.”  It was submitted that the Tribunal erred in that it made findings only that if the applicant were to face a false and politically motivated charge he would receive fair treatment from the courts and that there was not a real chance that in the course of such a process he would be subjected to serious harm amounting to persecution for a Convention reason.  It was contended that the Tribunal should first have made a determination as to whether or not it accepted the applicant’s claim that he had been the victim of politically motivated false charges by his BNP opponents, should then have made a finding as to whether or not the applicant had been convicted of those charges and sentenced to life imprisonment and then whether the detention of the applicant in Bangladesh pending an appeal to a superior court would constitute persecution.  It was submitted that the use of the judicial system as a tool to enforce political vendettas by the applicant’s political opponents and the resulting deprivation of liberty upon the applicant’s return to Bangladesh would amount to persecution (even pending a subsequent appeal) as the applicant should not have to endure such detention regardless of whether or not he would have the conviction quashed by a superior court at some indeterminate time in the future.  Associated with this claim was a suggestion that the Tribunal had apparently misunderstood the applicant’s claim relating to the politically motivated charges as it proceeded on the basis that the applicant had claimed that he would face false and politically motivated charges whereas his claim was that he had already been sentenced to life imprisonment.  Alternatively if the Tribunal had considered the claim it had erred in failing to consider whether the applicant would be detained on return to Bangladesh and whether that would amount to persecution. 

12. It is necessary to determine whether the reasons disclose that the Tribunal misconceived its fact-finding function in a fundamental way as submitted by the applicant.  If the Tribunal is confronted by claims of past persecution and does not make findings about those claims its reasons may reveal an error in the sense considered in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [75]. It is important to consider the precise nature of the claims made by the applicant and the Tribunal consideration. As summarised in the Tribunal reasons for decision (and there is no suggestion that this summary is incorrect) the applicant claimed at the Tribunal hearing that the ‘opposition’ had lodged a case against him, that he could not confront this and that he ran away to Dubai. When asked to elaborate he had claimed that the main allegation against him was not justified and that it was a false case. He also claimed that he did not appear when summonsed and that there was now a verdict of ‘life imprisonment’ against him.

13. The essence of the applicant’s claim was that a false and politically motivated charge was made against him and that in absentia he was sentenced to life imprisonment.  The Tribunal properly considered this claim.  It did not fail to consider the claim as put by the applicant.  Reading the reasons for decision as a whole and in the context of the Tribunal’s satisfaction that there was no real chance that the applicant would experience serious harm amounting to persecution because of his Jatiya Party membership, it is apparent that the Tribunal, while perhaps not expressing its conclusions as clearly as it might, was not satisfied that the false charge and conviction claim was made out.  This is apparent from the Tribunal reference to the fact that there was a lack of corroborative evidence to support the claim despite the fact that the applicant was given an opportunity to provide documentary evidence in support of his claims, and to the fact that the applicant had been able to leave Bangladesh legally for Dubai on his own passport six months after the alleged incident without any difficulty, notwithstanding the claim that he was wanted on a charge ‘that was so serious, that he claims he has subsequently been sentenced to life imprisonment for it’.  These findings make it clear that the Tribunal understood that the claims encompassed both a false charge and a conviction. 

14. As the High Court accepted in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1998) 185 CLR 259, the decision of the Tribunal must be read fairly and as a whole. As stated at [30]-[31] it is well settled that the Court should not be ‘concerned with looseness in the language nor with unhappy phrasing’ of the reasons and that the reasons of an administrative decision-maker ought not be construed ‘minutely and finally with an eye keenly attuned to the perception of error’ or scrutinised by ‘over-zealous judicial review seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’ (at [31]). Reading the decision as a whole the Tribunal considered and rejected the claim that the applicant had been charged and convicted in the past. This is also apparent from the context in which court independence is discussed. The Tribunal stated that the courts could be relied on: ‘even if a governing party’s activist does in fact file false charges.’ This confirms that the Tribunal was not satisfied that this had occurred in the past as claimed but considered what would occur if a charge were to be laid in the future. The Tribunal did not fail to determine a material claim of the applicant as contended.

15. Nor did it misunderstand the claim or fail to take into account integers of the claim being relevant considerations in a manner constituting jurisdictional error.  Moreover in these circumstances the claim that the Tribunal erred in failing to take into account information before it from a Country Report showing that persons can be detained for long periods of time waiting for trial and that police in Bangladesh are corrupt and abuse detainees with apparent immunity, does not establish jurisdictional error.  The Tribunal considered the applicant’s claim that he had been convicted in absentia.  He did not claim that he feared detention without formal charges.  The applicant did not claim specifically that he feared new false charges but any implicit concern in that regard was addressed by the Tribunal in its finding that the applicant would not experience serious harm amounting to persecution by reason of his Jatiya Party membership and in its reference to judicial independence.  The Tribunal was not required to make specific findings about circumstances of imprisonment pending an appeal given its rejection of the claim of past charges and conviction.

1. Insofar as concerns about the conditions of imprisonment in Bangladesh were raised by the claims made by the applicant, these were addressed by the Tribunal in its findings that were he to face a false and politically motivated charge on his return he would in these circumstances receive fair treatment from the courts in Bangladesh and that there was not a real chance that in the course of such a process he would be subjected to serious harm amounted to persecution for a Convention reason.  The Tribunal’s speculation about the future was informed by its findings as to the low political profile of the applicant and that he was unlikely to attract further adverse attention.  In those circumstances it was not necessary for the Tribunal to have regard to matters such as the risk of arbitrary detention or imprisonment for a lengthy period, the possible treatment of a detainee or delay in the hearing of a case in Bangladesh or to make specific findings about the circumstances of detention or imprisonment in Bangladesh. 

2. The proper focus of the Tribunal deliberations was whether the applicant had  well-founded fear of persecution.  The Tribunal doubted the applicant’s credibility.  Not only did it not accept the false charge/conviction/life sentence claims, it did not accept that the applicant would be targeted by other political parties or (given the lack of consequences after the 1997 threats) that there was a real chance that he would experience serious harm amounting to persecution.  In those circumstances the Tribunal was not required to enter into a detailed analysis of the various forms of persecution which a falsely charged and/or convicted person might encounter in Bangladesh.  The Tribunal’s task was to decide whether the applicant faced a ‘real chance’ in the sense of a ‘substantial, as distinct from a remote chance’ (Chan Yee Kin v MIEA (1989-90) 169 CLR 379 at 389 per Mason J) of persecution. It did so. It was entitled to form views about the credibility of the claims and not required to accept uncritically all allegations made before it. The findings made by the Tribunal effectively dealt with the applicant’s claims about the false charges and conviction and sentence of life imprisonment and his fears about the future.

3. The applicant also contended that the Tribunal was required to and did not take into account a US Department of State Country Report on Bangladesh dated 23 February 2001 which stated that higher courts in Bangladesh are independent but lower courts ‘are reluctant to challenge government positions’ and ‘are more susceptible to pressure from the executive branch.’  This Report was material relied upon and referred to in the decision of the delegate.  The Tribunal stated that it had before it the Department’s file including the application and decision record and also that it had regard to the material referred to in the delegate’s decision as well as other material available to it from a range of sources.  It did not refer specifically to this Report.  It was submitted for the applicant that the Court should infer that the Tribunal had not taken this material into account, as had it done so it could not have made the unqualified statement that courts in Bangladesh are independent because the US Report showed that inferior courts in Bangladesh were not independent of the government.  Alternatively it was suggested that if the Tribunal had had regard to such material it had acted in bad faith or that the conclusion that the courts in Bangladesh were independent gave rise to an apprehension of bad faith or bias.

4. It was contended that the US Country Report was material that the Tribunal had to take into account because it had to look at the judicial system in Bangladesh in determining what would happen to the applicant upon return to Bangladesh, and that information in relation to independence of the judiciary as well as information in that material as to the abuse of detainees and the possibility of extensive detention pending any appeal should have been considered as constituting possible persecution. 

5. It is, however, well established that the ground of failure to take into account a relevant consideration refers to failure to consider a matter which the Tribunal was bound to take into account in the sense of an integer of the applicant’s claims (see Minister for Immigration and Multicultural Affairsv Yusuf (2001) 206 CLR 323, Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244 at per Allsop J, SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 and Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 per Mason J). The ground is not made out by citing an item of evidence to which a decision-maker did not advert specifically in the decision (Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 374 – 5 per Deane J). It is not necessary for a decision-maker to refer specifically to all items of competing evidence. In this case the Tribunal reasons for decision indicate that the Tribunal had regard to the material referred to in the delegate’s reasons for decision (which included the Country Report in issue). It was not necessary for the Tribunal to discuss such information in addressing relevant considerations or aspects of the applicant’s claims. The weight to be given to particular independent evidence was a matter for the Tribunal. The Tribunal finding about the independence of the Bangladeshi courts was grounded on probative material identified in its reasons for decision which was capable of supporting that conclusion in the context of the applicant’s claim before the Tribunal that he had already been convicted and sentenced. There is nothing to suggest that this claim was misunderstood by the Tribunal. In such circumstances the statements in the Country Report regarding the lack of independence of the lower courts lack the relevance contended for by the applicant (who would on his account face an appellate court were he to seek review of the alleged conviction and sentence of life imprisonment). Moreover insofar as the applicant raised the claim of a prospect of new false charges, this possibility was considered and rejected by the Tribunal in findings regarding the BNP government’s attitude to the Jatiya Party and as to the applicant’s low political profile and lengthy absence from Bangladesh. It was not necessary to give the material in the Country Report about lower courts the express consideration contended for by the applicant.

6. The applicant also claimed that there was a lack of good faith evident in the Tribunal’s conclusion that Bangladeshi courts are independent in the face of evidence in the Country Report that lower courts are not independent.  No such absence of good faith is established.  (See SBBS v MIMIA (2002) 195 ALR 749). An allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker. Such an allegation is not to be made lightly and must be clearly alleged and proved. It will rarely be made out when, as here, all that the applicant relies on is the written reasons for the decision. Errant fact finding, without more, does not demonstrate bad faith. Nor, in the circumstances of this case, is any claim of apprehended bias made out. There is nothing in the material before the Court to suggest that there is any real likelihood that a reasonable observer might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to resolution of the application. There is no evidence as to the manner in which the hearing was conducted (other than the Tribunal reasons) nor anything to suggest that the Tribunal proceeded in anything other than an appropriate manner including, given the inquisitorial nature of its proceedings, properly raising critical issues with the applicant. There is nothing to suggest that the Tribunal was dishonest in its task or reckless in the manner of its decision-making or that its conclusion (in relation to the independence of the Courts or otherwise) suggested a lack of impartiality. Indeed the Tribunal reasons for decision indicate that the Tribunal was at pains to ensure that the applicant had every opportunity to put his claims to the Tribunal during the hearing (see Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28).

7. As no jurisdictional error has been established, the application should be dismissed. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date: