SZASB v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1420

FEDERAL COURT OF AUSTRALIA

SZASB v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1420

MIGRATION – no point of principle

Migration Act 1958 (Cth)

SZASB AND SZASC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1233 OF 2004

MOORE J
3 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1233 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZASB AND SZASC APPELLANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	3 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the respondent's costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1233 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZASB AND SZASC APPELLANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	3 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of a Federal Magistrate of 6 August 2004 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal").  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") not to grant the appellants protection visas under the Migration Act 1958 (Cth).

2. The appellants are husband and wife and both are citizens of Bangladesh.  The appellants arrived in Australia on 15 October 2000 and lodged an application for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs on 27 November 2000.  On 5 February 2001, a delegate of the Minister refused the grant the appellants protection visas.  The appellants sought review of that decision.  On 1 May 2003 the Tribunal affirmed the decision of the delegate of the Minister not to grant the appellants protection visas.  The appellants sought judicial review of that decision in the Federal Magistrates Court.  On 6 August 2004 a Federal Magistrate dismissed the appellants' application for judicial review. 

   Background

3. The appellants are husband and wife and both are citizens of Bangladesh.  The appellant wife made no independent claims under the Convention and for convenience I refer to the appellant husband as the appellant.  Before the Tribunal, the appellant claimed there were five elements that gave rise to his fear of harm and being killed if he were to return to Bangladesh.  The following is a summary of those five elements from the Tribunal's reasons for decision. 

4. First, the appellant's business partner ("MMM"), who was a faction leader in the Awami League ("AL"), and the appellant were involved in a legitimate business.  MMM was also involved in illegal business.  The proceeds of the illegal business were put into the legitimate business.  AL assisted MMM in his business dealings, however MMM did not carry out the wishes of AL leaders who then ordered his death.  Seven Star, a group of terrorists or hitmen then linked to the AL and now associated with the Bangladesh Nationalist Party ("BNP") as they are hitmen and always work for those in power, killed MMM.  Seven Star wanted to kill the appellant because they believed the appellant was the only obstacle to getting the money and property of MMM. 

5. Secondly, the appellant's ex-boss in a land company ("EEE") wanted to kill the appellant because EEE had borrowed money from the appellant's cousin ("CCC"), a bank manager, and had defaulted on the loan.  EEE wanted to kill the appellant to avoid repaying the loan.

6. Thirdly, an ex-MP for the BNP (DDD) had leased a shop from a development managed by the appellant and had demanded additional benefits.  He wanted to kill the appellant because they had argued over the business arrangements, in particular benefits to DDD that the appellant's boss gave the impression DDD would get but ordered the appellant not to give to DDD.  DDD is very well connected with the present government and could use his political connections to harm the appellants.

7. Fourthly, the appellant's ex-wife and her family have used their political connections to lay false charges against him and will subject him to further such harm if he were to return.  His ex-wife wants to kill him because he divorced her.  The ex-wife and her family have political connections in the BNP government.

8. Fifthly, the appellant's cousin who is a bank manager and who loaned money to appellant's ex-boss in a land company wanted to kill him to avoid paying the appellant his share of the deal with the appellant's ex-boss. The appellant indicated that in all five instances, those seeking to harm him with fifth of the the would use their political status or connections to effect the harm.

   The Tribunal's decision

9. In its reasons for decision, the Tribunal noted independent country information concerning the rate of document fraud in Bangladesh and the difficulties associated with checking whether court documents were genuine.  The Tribunal noted that independent country information showed that Bangladeshi courts are independent and provide protection to those falsely charged, even when activists from the governing party file those false charges.  The Tribunal thought it unlikely that the appellant would be denied a fair trial if any real or false charges were laid against him. 

10. The Tribunal doubted that the appellants' fears of harm were well founded.  The Tribunal considered it unlikely a terrorist group associated with AL would now be sponsored by the BNP government and that his cousin or his former boss or business partner would kill him because of past business dealings, especially as the appellant maintained he was honest in those dealings.

11. The Tribunal considered that any harm arising from the five elements would not be for reasons of the appellant's race, religion, nationality, membership of a particular social group or political opinion.  The Tribunal found that none of the appellant's reasons for why each of the elements would want to harm him were political or related to the appellants' actual political opinion or a political opinion that may be imputed to them.  Instead, the Tribunal found that the reasons were personal or commercial. 

12. As to the appellant's claim that there was a political element to the harm arising from the five elements (as all of the persons have political connections and may use those connections to harm him) the Tribunal concluded that the use of political connections by persons in those five elements to cause harm would not be for reasons of the appellant's political opinion.

13. The Tribunal noted that while it may be possible that the five elements had some unknown political aspects, it was not satisfied that any political motives were the essential and significant motivation for the persecution feared.  The Tribunal found that the essential and significant motivation for the persecution feared were personal and commercial.

    The Federal Magistrate's decision

14. The Federal Magistrate summarised the Tribunal's reasons for decision and the appellant's claims and concerns at [6] and following:

    The Tribunal's reasons for decision, after describing the five elements referred to above, go on to talk about document fraud in Bangladesh and then about independent country information concerning the political situation in that country and the status of the judiciary.  The Tribunal's findings and reasons are short.  It comes to no conclusion as to the truth or otherwise of the allegations, nor, importantly, does it come to any conclusion that some of the vast quantity of documents submitted by the [appellant] was not genuine.  What the Tribunal does decide is that some aspects of the [appellant's] evidence were unlikely and opportunistic and that as none of the reasons given for the harm feared were political or related to the [appellant's] actual political opinion, or a political opinion which might have been imputed to him, the case did not fall to be considered as one in respect of which there was any convention nexus.
    The Tribunal said at [CB 402]:

    “The applicants state that there is a political element to the harm as all five elements have political connections and they used them against the husband.  I am not persuaded that the use of political connections to cause the [appellant] husband harm would change the motivation of the elements in seeking to harm the [appellant].  That is, the use of political connections to cause harm would not mean that any harm suffered was harm for reasons of the [appellant] husband's political opinion.
    Whilst it is possible that the motives of the elements may have some unknown political aspects, on the [appellant's] evidence I am not satisfied that any political motives are the essential significant motivation for the persecution feared (see section 91R(1)(a) of the Act).  Rather, I am satisfied that the essential and significant motivation for the persecution feared are motivations given in evidence by the [appellant] husband.  Those motivations are personal, commercial and not political.”

    The finding by the Tribunal is a finding of fact with which this court cannot interfere. 
    The [appellant] before me today provided me with some written submissions and also spoke.  He told me that he was concerned that the Tribunal had indicated to him that his case was complex and required more than one interview.  He had been required to obtain translations of all the documents which he wished the Tribunal to consider, and he felt that the Tribunal should have accepted his evidence.  He believed that the documents which he had submitted were sufficient to enable the Tribunal to come to the decision that he could be provided with asylum.
    He also complained that the Tribunal had not made any independent attempt to verify his story or make investigations and he repeated that the motives of those persons who had persecuted him was political.  The [appellant] made the point that the Tribunal had not debated with him the possibility that the documents which he had provided were products of document fraud.  But the Tribunal made no finding that the documents were forgeries, so this was not necessary.
    One of the major complaints made by the [appellant] that grounded his fear of persecution was the fact he had suffered a penalty of three years imprisonment in respect of certain proceedings brought, he says, by his former wife.  This is a matter in respect of which the Tribunal's findings concerning the courts of Bangladesh go. But I note with some interest that in one of the documents produced by the [appellant] which commences at [CB 366] and which seems to be a complaint made against the [appellant] by his former wife and her father, there is after a lengthy discussion of the complaints a complete exoneration of the [appellant] and a finding that the complaint is fabricated [CB 370].  This would appear to support the view held by the Tribunal that cases heard in Bangladesh are subject to proper judicial consideration.

    His Honour concluded the appellant had not demonstrated that the Tribunal erred in law in finding a lack of political motivation in the alleged persecutory incidents. 

15. His Honour concluded that the appellant had not established a basis for a finding of actual bias against the Tribunal and that this was not a case where the Tribunal was required to conduct an independent investigation into the issues raised by the appellant.  His Honour noted that it is solely the Tribunal's task to assess and determine the weight to be given to the evidence presented by the appellant.  The application was dismissed.

    The appeal and its disposition

16. The appellant's grounds in the amended notice of appeal were:

    1.The Tribunal erred at law in failing to consider the appellant's subjective state of mind in considering whether or not the [appellant] had a well founded fear of persecution.  The state of mind which exists in a well founded fear of persecution comprises both an objective and a subjective element.  Failing to consider one of those elements is an error of law because the Tribunal has not properly performed its duty in ascertaining whether or not the [appellant] satisfies the criterion under section 36(2)(a) of the Act.

    2.The honourable Federal Magistrate Court failed to find that the [Tribunal]  erred in law in determining that the [Appellant] did not fall within a class of persons constituting "Political opinion as a Political member of Bangladesh Awami League" for the purposes of Article 1A(2) of the Refugees Convention.

    3.The honourable federal magistrate failed to find that the [Tribunal]  failed to understand that the appellant was a member of the political party and the persecution was fully convention bases under Article 1A(2) of the Refugees Convention.

    4.The honourable Federal Magistrate failed to find that the [Tribunal] exceeded its jurisdiction, in failing to accord the applicants procedural fairness, as required under section 424A (1), section 418(3) of the Migration Act 1958.

    5.Tribunal member did not consider [appellant's] evidence and [Tribunal] decision was affected by error of law, lack of procedural fairness and denial of natural justice issue.

    6.The [Tribunal] made denial of natural justice by not giving [appellant] an opportunity to respond the adverse information before the tribunal to decide the protection visa for the appellants.

    7.The Honourable Magistrate failed to consider the [Tribunal] made denial of natural justice and lack of procedural fairness at the time of deciding my matter under section 418(3) of the migration act. The Secretary of the Department did not comply with s 418(3) of the Migration Act, because he had failed to give the Registrar of the part B document's in his possession or control, namely documents the delegates relied upon to decide the protection visa application.

    8.The honourable Federal Magistrate failed to find that the [Tribunal] did not put to the [appellant] its doubts about documents containing information personal to the [appellant] from different sources of Bangladesh, and those doubts formed part of the reason for the Tribunal's decision.

17. The gravamen of the appellant's complaint at the hearing of the appeal concerned the attitude or approach of the Tribunal.  According to the appellant, there had been two hearings by the Tribunal.  That is apparent from the documents in the appeal book.  One hearing took place on 15 November 2002 and another on 28 April 2003.  The appellant said that at the first hearing the Tribunal appeared to accept his account of his experiences in Bangladesh but at the second hearing, appeared to have a closed mind and to have prejudged the matter (adversely to the appellant).  However, I was not referred to any material which would establish that the Tribunal had, at the second hearing, a closed mind let alone material which might support a conclusion that the Tribunal was biased in any relevant legal sense.

18. As the Federal Magistrate noted, the reasons of the Tribunal are short.  Also, the appellant failed to establish he was entitled to a protection visa because of findings of fact made by the Tribunal concerning whether any harm he might suffer on returning to Bangladesh was related to actual or imputed political opinion.  Quite correctly, the Federal Magistrate indicated that issues of fact were for the Tribunal to determine and it was not bound to investigate by further inquiry, claims or matters raised by the appellant.

19. In written submissions filed before the hearing of the appeal, the appellant traversed a number of issues.  He alleged the Tribunal failed to follow proper procedure, erred in law and did not afford him natural justice.  He also alleged that the Tribunal failed to consider the appellant's subjective state of mind and failed to appreciate that as the appellant was a member of a political party, the persecution "was fully convention based".  There was also an allegation that the Secretary of the Department had failed to comply with s 418.  A specific allegation was made that the Tribunal rejected documents furnished by the appellant on no proper basis and failed to alert him that it might conclude that documents were fraudulent.  Further, it was alleged, the Tribunal also failed to make findings about changes that might occur in the foreseeable future in Bangladesh.

20. Counsel for the Minister did not object to these matters being raised, with one exception, although they went beyond the issues raised before the Federal Magistrate.  I agree that it is now too late to raise a case (even though it appears to have no foundation in fact) that the Secretary of the Department failed to comply with s 418.  As to the other matters raised by the appellant I accept, as counsel for the Minister submitted, the decision of the Tribunal ultimately turned on its acceptance (though qualified) of the appellant's account but its conclusion that any harm the appellant might suffer was not related to any of the matters to which the Convention related (race, political opinion, religion, nationality, membership of a particular social group). 

21. The appellant has not demonstrated any error on the part of the Federal Magistrate nor that the decision of the Tribunal was attended by jurisdictional error.  The appeal should be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             3 November 2004

The Appellant husband appeared in person and on behalf the appellant wife.
Counsel for the Respondent:	G R Kennett
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	26 October 2004
Date of Judgment:	3 November 2004