SZAVH v Minister for Immigration - [2004] FMCA 675

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAVH & ORS v MINISTER FOR IMMIGRATION

[2004] FMCA 675

MIGRATION – RRT decision – no failure to address part of claims – no error in finding improved law and order in Bangladesh – no failure to have regard to country information obtained by Tribunal.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.424(1), 483A, Part 8
Htun v Minister for Immigrationand Multicultural Affairs (2001) 194 FCR 242

Minister for Immigration v Respondent S152 of 2003 (2004) 78 ALJR 678

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte ApplicantsS134/2002 (2003) 211 CLR 441

Applicants:

SZAVH, SZAVI, SZAVJ & SZAVK

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1147 of 2003

Delivered on:

23 September 2004

Delivered at:

Sydney

Hearing date:

23 September 2004

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicants:

Mr L Karp

Solicitors for the Applicants:

Wright Yandell Stell Lawyers

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicants to pay the respondent’s costs in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1147 of 2003

SZAVH, SZAVI, SZAVJ & SZAVK

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application invoking the Court’s jurisdiction under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) challenging a decision of the Refugee Review Tribunal (“the Tribunal”) which upheld the refusal of a protection visa to the applicant and secondary visas to his wife and two children. Since it is only necessary for me to address how the Tribunal dealt with the case of the first named applicant, I shall refer to him as “the applicant”. Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”.
The jurisdiction of the Federal Court in relation to such matters is its judicial review jurisdiction conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. A judicial review jurisdiction of any sort can provide a remedy only where a legal defect is identified in the administrative action under challenge and it is axiomatic that it does not extend to correcting an error which is merely an error of fact or of judgment on the merits by the Tribunal.
The limitations on the judicial review jurisdiction of the Court in Part 8 of the Migration Act do not need to be explored by me in the present case since the applicants’ submissions accept that the application must fail unless it can be shown that the Tribunal's decision is not a privative clause decision according to the interpretation of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76-7], and in subsequent cases. This requires them to establish that the decision is vitiated by jurisdictional error.
The background to the case is as follows. The applicant was born and educated in Bangladesh where he achieved significant qualifications in art and publishing, and had his own business. He arrived in Australia in January 2001 on a passport containing a one month visitor's visa, and while this was current he applied for a protection visa on 15 February 2001. The application was refused on 19 April 2001. The applicant appealed with the assistance of an immigration agent to the Refugee Review Tribunal on 7 May 2001. His agent presented a written submission in support, and he and his agent attended a hearing before the Tribunal on 22 January 2003. Before giving its decision the Tribunal sought and received extensive research advice from within its own resources, and it handed down its decision on 5 June 2003. The application to this Court was lodged on 24 June 2003 and has come on for hearing today.
Both parties have been represented by counsel and I thank counsel for their able submissions which have assisted me to reach a decision immediately.
The Tribunal set out in its reasons the applicant's claims for fearing persecution within the terms of the Convention definition in a manner which counsel for the applicant accepts is uncontroversial. It is not necessary for me to set them out verbatim. Briefly, the applicant claimed in his protection visa application that he had joined the Bangladesh political party known as BNP and affiliated bodies in 1983. When it came to power in 1991 he organised and participated in cultural activities involving government personalities at a high level. In 1996 a rival party, the Awami League, assumed power and the applicant claimed that he used his talents to portray the government's breaches of human rights and general corruption through cartoons, at least two of which were published in the print media. He gave an account that in May 2000 members of the student wing of the Awami League asked him to design party posters and that when he refused he received threats. He says that he was also picked up and taken to an army containment for questioning about his involvement with the BNP and other cultural organisations. He claimed that in June 2000 the members of the Awami League student wing visited his workplace and threatened his employees, and that police subsequently searched the office without any formal warrant. He was further harassed by Awami League members demanding substantial donations, and in July 2000 his house was attacked and his computer system and much of his art destroyed. The invaders threatened his wife and their children and he was wounded. He contacted the police, who failed to act. Following that incident he decided to leave Bangladesh and did so, although it would seem that his business has continued in his absence.
By the time the matter came on for hearing before the Tribunal the Awami League had ceased to control the government of Bangladesh, and the governing party was the BNP together with some other parties. Reflecting that change, the submission made on his behalf to the Tribunal altered the basis on which it was claimed that he still feared persecution as defined by the Refugee Convention and Migration Act, so as to focus on a component of the BNP government with affiliations to Muslim fundamentalists. He then claimed that he had fears of terrorists activities by people related to fundamental Muslim groups, and also that his position as a progressive artist would leave him open to harassment for which he would not receive appropriate protection from the government.
The Tribunal was concerned to assess the change that had occurred in Bangladesh and the altered focus of his claims in relation to fear of persecution. It questioned him about these matters in the course of the hearing and had also sought relevant country information about the situation in Pakistan.
Under the heading "Findings and Reasons" the Tribunal said:
The Tribunal believes that while the applicant's experiences during the period of the Awami League government in Bangladesh prior to 2001 are credible, and Bangladesh politics is known to be "violence prone" on all sides of political spectrum, (Profile of Asylum Claims and Country Conditions, February 1998 CX31417), this does not necessarily provide sufficient grounds for claiming a real chance of persecution under the Convention.
The Tribunal then referred to the change of government in which BNP won a general election with a substantial majority, and said:
The applicant at the hearing agreed that with the change in government, his fears regarding Awami League persecution were greatly reduced, and he made additional claims, stating that as the BNP was in a coalition with a number of parties including the Jamat Islami, which is a fundamentalist Islamic party, he cannot expect to have the degree of artistic freedom which as a professional artist he would like to enjoy and which was available in Australia.
The Tribunal then refers to country source information about the current position of writers and artists in Bangladesh, and continued:
The Tribunal noted that the Awami League is now in Opposition and it sought from the applicant evidence that its supporters still remained a threat to him. He did not provide any evidence beyond suggesting that even under the BNP government there was insecurity as leading BNP party figures had been removed from office and the Awami League “terrorists” were still around.
The Tribunal has heard no evidence which would suggest that should the applicant return to Bangladesh and continue with his miniature art and commercial artistic interests that he would wish to produce art which differed in any fundamental respects from what he has produced in the past. Consequently, the Tribunal does not accept that the content of the applicant’s art gives rise to a claim that his normal artistic expression will be suppressed and that this would amount to a well founded fear of persecution under the Convention.
The Tribunal was also shown a number of the applicant’s “political” cartoons which he had published when the Awami League was in government. While accepting that no government enjoys adverse cartoons, the Tribunal is aware that the applicant has done no political cartoons against the BNP government. The applicant argued that to maintain his artistic integrity he wanted to reserve the right to do cartoons against the BNP if they engaged in corruption. However he produced no evidence, nor is the Tribunal aware from country reports of other cartoonists having been persecuted under the BNP government. Consequently the Tribunal does not accept that he has a well founded fear of persecution on these grounds.
The applicant claimed in his original statutory declaration (February 2001) that the police were looking for him. At the hearing before the Tribunal, the applicant did not confirm that there were still ‘false’ charges pending against him initiated by the former government, nor that the police were seeking to arrest him on his return to Bangladesh.
The applicant asserted that he was not in good terms with members of other factions within the BNP who could threaten him but he did not produce any evidence which would have led the Tribunal to conclude that this factor placed him at risk of persecution.
The Tribunal notes that the BNP government has encouraged the police to arrest and the courts to try BNP members and those of other parties who have breached the law. The leader of the BNP, now the Prime Minister, clearly stated upon her attaining office:
“We will not tolerate any terrorism or corruption from anyone be they cabinet minister or member of parliament … now is not the time for division but unity to develop the country”. (Khaleda Zia takes oath as lawmaker ahead of forming new Government, AP 9 October 2001 RRT Library)
In view of the BNP government’s stated policies on law and order and the Prime Minister’s desire to reduce political influence as a factor in determining outcomes before the courts. According to the US State Department’s Report: Bangladesh, Human Rights Practices – 2001 released by the Bureau of Democracy, Human Rights and Labor, the police are controlled by the Home Affairs Ministry which is subject to government policy, the Tribunal has noted a recent Bangladesh press comment which strongly suggests that the BNP government has had some success in making the law paramount over political influence:
“The Government however deserves a pat on the back for nabbing a number of BNP men involved in criminal activities”. Daily Star 10 October 2002 Vol 3 No 1100.
In view of what appears to the Tribunal, on the basis of country information, to be a relatively improved law and order situation in Bangladesh, the Tribunal does not accept that upon his return, the applicant would face a real chance of persecution from his alleged political rivals from any party.
Nor does the Tribunal find that there is a real chance that the applicant will suffer persecution for reason of his political views or for any other Convention reason, now or in the foreseeable future. Consequently his fear of persecution for a Convention reason is not well founded. (my emphasis)
In the further amended application for judicial review filed today and addressed by counsel for the applicant, four grounds were argued which can be conveniently grouped into two.
The first ground focussed on the first paragraph which I have highlighted in the extract above. It was submitted that this paragraph revealed the Tribunal failing to address, in the sense of reach a conclusion on, a substantial part of the applicant's claim for refugee status, that is, to fear persecution if returned to Bangladesh. The claim which was not addressed was a claim that he feared being persecuted by the continuance of a false charge and threat of arrest made before he left Bangladesh. It was submitted that such a failure would amount to jurisdictional error within the authorities including Htun v Minister for Immigrationand Multicultural Affairs (2001) 194 FCR 242, and recently in the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at paragraphs 56 to 63. Counsel for the Minister did not, as I understand him, dispute that if a substantial part of a refugee claim was not addressed then a jurisdictional error would be found.
The applicant's references to a false charge occur in the course of one paragraph in an extensive narration attached to his original application for a visa in which he said:
16. However, somehow the Chattra League terrorists came to know that I went to local police station to lodge a case against them. In response, receiving green signals from their party high command, they lodged a false case against me that I was involved with the activity subversive to the state. They identified me as an agent of Pakistan, because of my educational and professional involvement with Pakistan and other Muslim states, and started harassing me in different ways. Recently they started threatening that they would file more cases against me and they would see me at any cost. I am scared about police harassment, because they have a long tradition even killing people in detention centre. (Statutory Declaration sworn by the Applicant on 14 February 2001)
Later on in his narration he said:
22. Recently I heard that the police are searching me to arrest under Section 54 of criminal procedure and also under SPA. These are some black laws of the country, which every ruling party use for their own interest. (Statutory Declaration sworn by the Applicant on 14 February 2001)
and referred to a passage in a US state report concerning this.
No more information was given to the original decision-maker in support of these claims about the false claim or the fear of police arresting under Section 54. In the course of the submission made by his agent two years later to the Tribunal mention of this is made only in one line in a submission which occupies twelve pages. It said:
But despite his efforts to earn a living, the Awami League never left him instead, they threatened and demanded money which he earned. He did seek police help but that proved worthless as the latter were under the control of the League and did nothing. So began another nightmare, false charges were made against him for harassment. (Letter from Kazi & Associates to Refugee Review Tribunal dated 19 January 2003)
Nothing more was said about this claim in that submission.
Counsel for the applicant concedes that it is factually correct for the Tribunal to say that at the hearing before the Tribunal the applicant did not confirm that there were still false charges pending against him initiated by the former government nor that the police were seeking to arrest him on his return to Bangladesh.
In my view the sentence can be read as saying no more than the correct statement that it makes. It is made in the context of a discussion by the Tribunal as to whether, in the opinion of the Tribunal, the applicant’s concerns of persecution by parties now forming government or in association with government give rise to a real chance of persecution within the Convention definition. Among the applicant’s expressed concerns, his past fears in relation to “false charges” and arrest were not prominent, and by their very nature their significance must have diminished by reason of the change of government. If any general suggestion is intended by the Tribunal in the challenged sentence, it is no more than that this was the situation by the time of the hearing.
I consider that the Tribunal has clearly shown that it was aware that the applicant had claimed that a false charge initiated by the former government and its associates had been made and that before he left Bangladesh he feared arrest. I do not conclude, as was submitted by the applicant’s counsel, that the absence of further discussion in this section of its reasons shows that the Tribunal wrongly concluded that the applicant had withdrawn this part of his claims. I also do not accept that it shows that the Tribunal had wrongly expected the applicant at the hearing to confirm that the claim was still made. I am not persuaded from this passage in its reasons or otherwise that the Tribunal failed to address a significant part of the claims made by the applicant.
The second, third and fourth grounds of review in the further amended application focussed on the second paragraph to which I have highlighted in the extract above. As I understood it, and very much abbreviating the submissions made by counsel, four criticisms were made of the Tribunal’s statement:
In the view of what appears to the Tribunal, on the basis of country information, to be a relatively improved law and order situation in Bangladesh
which the Tribunal provided as a reason for not accepting that the applicant would face a real chance of persecution from his alleged political rivals from any party.
The four criticisms were:
a)the Tribunal did not make a finding as to the extent of the improved law and order situation which it found;
b)the Tribunal did not make a finding as to the effectiveness of the protection which would be available if the applicant returned to Bangladesh;
c)the Tribunal did not have regard to pieces of foreign country research obtained by it, to which I was taken by counsel, and which were submitted to show a decline in the law and order situation in Bangladesh. This failure was submitted to be in breach of s.424(1) which says that “the Tribunal must have regard to that information in making the decision on the review”; and
d)it was not open to the Tribunal to form the view that there was a relatively improved law and order situation.
I do not accept any of these submissions. In my view, the Tribunal was not required, as a matter of law, to make findings as to “extent” and “effectiveness” as submitted. I do not read anything in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 (2003) 211 CLR 441, or in Minister for Immigration v Respondent S152 of 2003 (2004) 78 ALJR 678, to which I was referred by counsel, as indicating a duty to do so in the circumstances of this case.
In relation to the evidence before the Tribunal concerning the law and order situation in Bangladesh at the time of the Tribunal decision, there was such an abundance of evidence bearing on this topic that it would be absurd to expect the Tribunal to address every point in it which favoured the contentions of the applicant. What is clear is that the Tribunal was alive to the need to look at the current situation, and that it commissioned internal research which produced a summary of relevant material. Indeed, counsel took me to parts of the summary which extract from the research the very passages which he argued were overlooked. I am not prepared to conclude that the Tribunal did not read that summary or the research or the material that was attached to it. Indeed, it is in my view highly probable that it did at least read the summary. I also consider that, where in the course of its reasoning the Tribunal refers, for example, to “other material available to it from a range of sources” and “on the basis of country information” (in the very paragraph challenged by the applicant), the Tribunal was referring to all the material which it obtained through its own researchers. I therefore reject the submission that I should be persuaded that the Tribunal did not have regard to various passages that counsel for the applicant took me to. In the circumstances, I do not think it necessary for me to set out those passages. It follows that I do not accept that the Tribunal was in breach of s.424(1) of the Migration Act.

In relation to the fourth point listed above, counsel for the respondent was not on any notice that the applicant would submit that this factual finding was not open to the Tribunal. However, he was able to take me to one passage, sourced from a cable from the Australian High Commission, which stated that:
… GOVERNMENT IS ABLE TO PROTECT PEOPLE AGAINST CRIMINAL ACTIVITIES BY FUNDAMENTALISTS. BANGLADESH IS A NON COMMUNAL SOCIETY AND THE GOVERNMENT HAS TAKEN ACTION AGAINST CRIMINAL ACTIVITY BY FUNDAMENTALIST GROUPS IN THE PAST AND WE THINK WILL BE WILLING TO DO SO IN THE FUTURE. (Page 157 of the Court Book)
I am not persuaded that there was no material before the Tribunal on which it could form an opinion that there was “a relatively improved law and order situation in Bangladesh”, in so far as the law and order situation was relevant to an assessment of the applicant's fears of persecution if he returned to Bangladesh.
For the above reasons, I dismiss the application.

RECORDED : NOT TRANSCRIBED

I order the applicants to pay the respondent's costs in the sum of $4000.

RECORDED : NOT TRANSCRIBED

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 8 October 2004