SZAZE v Minister for Immigration - [2005] FMCA 144

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAZE & ORS v MINISTER FOR IMMIGRATION

[2005] FMCA 144

MIGRATION – Application to review decision of the Refugee Review Tribunal – whether Tribunal failed to take into account relevant considerations.

Migration Act 1958

Minister for Immigration & Multicultural & Indigenous Affairs v Respondents S152 of 2003 (2004) 205 ALR 487
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598
Appellant S395 of 2002 v Minister for Immigration & Multicultural Affairs; Appellant S396/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112
Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244
Minister for Aboriginal Affairs v Peko-Wallsend (1988) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant:

SZAZE & ORS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1388 of 2003

Delivered on:

24 February 2005

Delivered at:

Sydney

Hearing date:

12 November 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Mr S. Lloyd

Solicitors for the Applicant:

Parish Patience Immigration

Counsel for the Respondent:

Mr G. Kennett

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That a writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 30 May 2003.
That a writ of mandamus issue requiring the Refugee Review Tribunal to re-determine the applicant’s application according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1388 of 2003

SZAZE & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 25 June 2003 refusing to grant the applicants protection visas. The applicants are husband and wife and their son who are citizens of Bangladesh who arrived in Australia on 23 November 2001. On 20 December 2001 they applied for protection visas. The application was refused and they sought review by the Tribunal. Only the applicant husband (referred to below as the applicant) made specific Convention claims.
The applicant claimed to fear persecution as a result of his political affiliations and activities as an Awami League leader. He claimed that he became involved in Awami League student politics in 1986 or 1987, worked actively in the district of Comilla and co-ordinated different election campaign committees on behalf of Awami League candidates. The Awami League came to power in Bangladesh in 1996. On

8 November 2000 the applicant was appointed assistant private secretary to the speaker of the Bangladesh National Parliament. Such appointment was for as long as the speaker held his post or as long as he was willing to keep the applicant in his employment. On 17 December 2000 the applicant was promoted to the position of research officer. The applicant explained to the Tribunal that the position of assistant private secretary was essentially a political appointment while the appointment as a research officer gave him a remunerated ongoing civil service appointment. The applicant claimed that he maintained his relationship with the Awami League section of the employees union at the parliamentary secretariat but that BNP supporters did not like his involvement with that group and failed to accept him in the team (and had filed a case in the Bangladeshi courts challenging his appointment).
He claimed that after the Awami League lost the October 2001 elections and the BNP-led coalition took office, pro-BNP union leaders had influenced the relevant authority to terminate the lease of the government residence he had been allotted when appointed assistant private secretary. On 2 November 2001, 14 to 15 people had come to his home and threatened him to leave the home instantly. He had been physically assaulted in front of his wife and child and felt they had no alternative but to move out of the home immediately despite not having been given proper notice.
Prior to the change of government the applicant had been selected to attend a course at the Royal Institute of Public Administrative, London under the sponsorship of the United Nations Development program. The then Awami League government had approved his leave from

19 November to 14 December 2001. He was to participate in the parliamentary administration course and then to have a holiday in Australia for two weeks with his family. He obtained visas for the United Kingdom and Australia (for his family and himself). In November 2001 he learned that his BNP opponents proposed to take action that would cancel his overseas trip so he left Bangladesh for London earlier than had been planned. He left his family in Bangladesh. He claimed that his wife was threatened that their son would be kidnapped unless he returned to Bangladesh and that his life and that of his wife were also threatened. After the applicant arrived in London his training course was cancelled by the government as was his trip to Australia. The government asked the Bangladesh High Commission in England to make arrangements to send him back to Bangladesh. However the applicant made arrangements to travel to Australia from London and for his wife and son to travel directly to Australia.
The applicant provided documentation in support of these claims including the documents cancelling his nomination to participate in the course and cancelling his leave and a copy of a letter from the Bangladesh High Commission to the Bangladesh Parliamentary Secretariat about the directive that he return to Bangladesh. Also provided was an extract from an English language newspaper about cancellation of his trip, cancellation of allotment of official residences and other ‘harassment’ by pro-BNP officials at the Parliamentary Secretariat of Parliament officials who had enjoyed ‘blessings’ of the past government.
The applicant claimed that the BNP government deployed laws to violate the political rights of persons in Bangladesh in particular those of opponent political activists such as himself, that the government applied laws in a discriminatory fashion against its political opponents, that the law and order situation had deteriorated and that the BNP government had started to detain, arrest, torture and persecute Awami League political activists.
In a statutory declaration provided to the Tribunal the applicant claimed that if he returned to Bangladesh he and his family would not be safe and that:
The insecurity is both financial and physical as well. The BNP will never let me do any job in peace or do any business peacefully in my country, so I will not have any scope to make my living over there.
He claimed to have received several threats to his life and threats to kidnap his son from BNP activists in Bangladesh, that his parents had also been threatened and the threats renewed against him. He claimed that he would be a target as a result of his political beliefs and that the BNP government was unwilling and unable to protect Bangladeshi citizens.
Submissions and supporting material were provided to the Department and to the Tribunal in support of the application. Both the applicant and his wife gave evidence at a Tribunal hearing. It is apparent from the Tribunal reasons for decision (which are the only record of what occurred in the Tribunal hearing) that the Tribunal asked for the applicant’s comments on independent country information upon which it proposed to rely and that the applicant identified persons who had threatened to kill him as members of the Parliamentary Secretariat union, a body which had come under BNP domination after the election.
The Tribunal described the evidence of the applicant and his wife as ‘frank and responsive testimony’ fully consistent with the protection visa application and associated documentation and submissions and also consistent with their claims to have had a well-established personal and professional life in Bangladesh and to have left only under the pressure of the fears they hold about their fate if they return. The Tribunal accepted the applicant’s claims about his activities in the Awami League, that he supported the principles and policies of the Awami League and that he was assistant private secretary to the speaker of the Bangladesh Parliament from November 2000 to November 2001 and that his appointment to that position derived from his political commitment to the Awami League which was then in government as well as his professional qualifications for that position and for the related appointment as research officer. The Tribunal found that, accordingly, that appointment did not outlast the fall of the Awami League government. It accepted therefore that his loss of the position and the government house that went with it resulted from his political opinion. However the Tribunal did not accept that the loss of his employment and his residence or the cancellation of the government-sponsored study visit to London and Australia was ‘serious harm’ within s91R(1) and (2) of the Migration Act 1958 or serious enough to meet the Convention definition of persecution despite being motivated by the Convention ground of political opinion.
The Tribunal did accept that the incident of 2 November 2001 in which the applicant and his wife and child faced violence in relation to his having ceased to be entitled to a government house constituted harm at a level sufficient to constitute Convention-related persecution. It also accepted that the applicant’s wife had received a threat to kidnap their son after the applicant had departed to London as part of pressure from his opponents to have him return to Bangladesh. However the Tribunal found, on the basis of independent country information, that violence against leaders and supporters of the Awami League after the October 2001 elections had subsided by early 2002. It concluded that the November 2001 incident of mistreatment and the kidnap threat during a period of heightened violence did not suggest that the applicant remained a significant target for anti-Awami League violence. It found that the applicant did not face a real chance of experiencing harm at that level in the circumstances applying at the time of the decision and in the reasonably foreseeable future.
The Tribunal also considered the claim that an anonymous threat had been made that the applicant would be killed if he returned to Bangladesh. His father had complained to the Bangladesh police about this threat in August 2002. The Tribunal considered that the fact that the applicant’s father had lodged a complaint with the Bangladeshi police suggested a belief on his part, if not necessarily on the part of the applicant himself, that the applicant had recourse to the protection of the authorities in relation to politically motivated harm. The Tribunal was satisfied that adequate state protection was available to the applicant if similarly motivated attacks were to recur on his return at a level going beyond political rivalry and involving criminal violence. It acknowledged that issues were raised by the poor record of the Bangladesh law and order authorities but considered that there was not a real chance that the authorities would refuse the applicant the same level of protection from criminal violence including politically motivated violence as was available to Bangladeshis in general.
The Tribunal found there was a real chance that the applicant may engage in further political activity in support of the Awami League on return to Bangladesh but considered that it would be open to him to do this in a manner that did not put him at risk of being involved in violence by exercising prudence to avoid situations where violence was likely or appeared imminent. The Tribunal found that, given his previous experience and conduct, he would exercise prudence in engaging in future political activities and that by so doing he could still express his political opinion without facing a real chance of politically motivated persecution.
The applicant commenced proceedings seeking review of the Tribunal decision on 18 July 2003. The applicant relies on a number of grounds which fall into three categories of alleged error. The first of these is in ground 6 (that the Tribunal misapplied and/or misinterpreted the applicable law when, in considering whether or not there was effective protection it applied a test of ‘equal protection to all’ rather than the required test of reasonably effective protection in accordance with international standards). Counsel for the respondent that the Tribunal had fallen into jurisdictional error in its reasoning on the issue of state protection, such reasoning being inconsistent with the approach of the majority in Minister for Immigration & Multicultural & Indigenous Affairs v Respondents S152 of 2003 (2004) 205 ALR 487. However, as counsel for the respondent contended, the finding in relation to state protection was an alternative to the finding that the applicant did not face a real chance of experiencing harm at the level of the November 2001 incident amounting to persecution in the changed circumstances in Bangladesh. This latter finding provides a distinct basis for the Tribunal decision. Accordingly it is necessary to consider whether either of the applicant’s other contentions as to alleged jurisdictional error are established.

Misapplication of the law (grounds 1 and 2(i))

The applicant contended that the Tribunal misconstrued and/or misapplied the expression “well-founded fear of persecution” in that it found that the dismissal of the applicant from his job for political reasons in a country that is one of the poorest in the world and has high unemployment, did not constitute persecution. It was further contended that the Tribunal failed to ask a material question that it had a statutory duty to ask in failing to ask whether or not the applicant would be able to find employment and/or not be prevented from finding employment if he returned to Bangladesh.
It was submitted that in finding that the applicant did not suffer persecution by reason of his dismissal from office and eviction from his residence by reason of political opinion the Tribunal failed to refer to or make any finding about his claim that the government would prevent him doing any job or running any business in Bangladesh and that this implied that the Tribunal did not consider it was relevant to the question before it. This was said to reveal a misunderstanding of the law, as the Tribunal needed to consider whether the harm threatened the applicant’s capacity to subsist under s.91R(2)(d) of the Migration Act 1958. In making no finding and failing to address an important claim advanced by the applicant the Tribunal was said to have fallen into jurisdictional error of the kind mentioned in Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389. It was contended that the error was made all the more obvious by the failure of the Tribunal to have regard to the fact that Bangladesh is one of the poorest countries in the world with high unemployment and that the failure to discuss these matters and address the applicant’s express claims revealed that the Tribunal did not properly understand or apply the relevant provisions of the Migration Act.
Counsel for the respondent contended that the applicant’s claim was a claim made to the Tribunal in the statutory declaration sworn on 16 May 2003, but apparently not pursued at the hearing, that “the BNP will never let me do any job in peace or do any business peacefully in my country”. It was contended that the applicant was therefore not claiming, at least expressly, that he would be denied any employment or deprived of a livelihood if he were to return to Bangladesh but rather that this was part of a broader claim that he would lack ‘financial and physical’ security in that he would be harassed by the BNP in all areas of his life. It was contended that the claim did not raise for the Tribunal a question as to whether the applicant would suffer harm of the kind referred to in s.91R(2)(d) of the Migration Act, there being no discrete claim of persecution in the form of future denial of employment which the Tribunal was obliged to address.
In fact, a claim about future employment prospects was first made in the statutory declaration of the applicant provided in connection with the protection visa application. The applicant claimed that if he went back he would have no future in Bangladesh and “I will have no employment”. He elaborated that he believed he would be the victim of harassment and would have no freedom to live a safe and secure life with his family. The claim in issue was then made in the statutory declaration of 16 May 2003 provided to the Tribunal with an accompanying submission dated 19 May 2003 some days before the Tribunal hearing on 22 May 2003. As to the submission that the claim was apparently not pursued at the Tribunal hearing, there is no evidence that the claim was abandoned, albeit that the Tribunal reasons for decision do not include a discussion of such issues in the context of the outline of what occurred in the Tribunal hearing.
The Tribunal summary of what occurred in the Tribunal hearing is not such as to satisfy me that the applicant was not in fact making or had abandoned a claim in relation to financial (that is employment) concerns as well as physical concerns. Given that the applicant is recorded as having told the Tribunal that he considered that his life would be at immediate risk if he returned to Bangladesh, the focus on this aspect of his fears in the Tribunal account of what occurred in the Tribunal hearing is perhaps not surprising, but it does not ‘shed light’ on the true scope of his claims in the manner contended for by counsel for the respondent.
It is relevant that the applicant’s claim as expressed in the statutory declaration of 16 May 2003 was not simply that the BNP would never let him do any job in peace or any business peacefully in his country but continued ‘so I will not have any scope to make my living over there’. Contrary to the contention of the respondent, this is an express claim in relation to a fear of a deprival of livelihood if the applicant were to return to Bangladesh. The nature of the claim is reinforced by the fact that in the same paragraph in which the claim is made in the statutory declaration provided to the Tribunal the applicant indicated that his insecurity about returning to Bangladesh was ‘both financial and physical as well’. The fact that the applicant also made a more general claim that BNP activists would harass him and subject him to violence or threats of violence and that the main emphasis in the detail of his statutory declaration and his response to Tribunal questioning about why he believed he met the Convention definition of a refugee focused on a fear of serious danger, violence or physical harm, does not mean that the applicant was merely making a general claim that the BNP was out to do him harm. While his initial statutory declaration may be seen as addressing the fact that he had lost his particular employment as assistant private secretary and research officer, the statutory declaration provided to the Tribunal makes it clear that he was addressing a wider financial concern about the future and whether he would be allowed to do ‘any’ job or ‘any’ business in peace in the context of addressing a fear that he would not have any scope to make his living in Bangladesh. He claimed to fear financial insecurity and also physical insecurity. These two distinct aspects of the applicant’s claim are, contrary to the submission for the respondent, clear on the face of the statutory declaration of 16 May 2003.

I am satisfied that the Tribunal failed to deal with the applicant’s distinct claim relating to the potential denial of employment or livelihood. Its consideration of changed circumstances in relation to subsiding violence in Bangladesh does not address this particular claim.
The parties differed as to the consequences of a finding that the Tribunal failed to deal with an aspect of the applicant’s claims and whether the error was of the kind considered by the High Court in Dranichnikov. In Dranichnikov the Tribunal misunderstood or failed to consider whether the group or class to which the applicant claimed to belong was capable of constituting a social group for the purposes of the Refugees Convention and in effect misunderstood the entire basis on which the applicant had claimed to be a refugee. It was in those circumstances that the High Court held that to fail to respond to a substantial, clearly articulated argument relying upon established facts was at least a failure to accord the applicant natural justice and that either characterised as that or as more it constituted a constructive failure to exercise jurisdiction entitling Mr Dranichnikov to relief under s.75(v) of the Constitution. (See Gummow and Callinan JJ at [25]).
In this instance what has been misunderstood or overlooked is not the source of harm or the nexus with the Refugees Convention but rather the nature or extent of the feared harm based on political opinion. Counsel for the respondents contended that in this instance any failure by the Tribunal was not an error of the kind committed in Dranichnikov but at most a failure to appreciate the significance of the evidence or material led – a factual error but not a misunderstanding or misconstruction of the whole amounting to a failure to review the case.
There was no issue in this case about particular social group. However Gummow and Callinan JJ also suggested in Dranichnikov (at [32]) that the failure of the Tribunal to exercise jurisdiction (which in that case was a failure to decide the necessary question of whether the group to which the applicant claimed to belong was capable of constituting a social group for the purposes of the Refugees Convention) was “analogous to” the situation in MIMA v Bhardwaj (2002) 76 ALJR 598 in which a failure to give a hearing in relation to an application for an adjournment was held to amount to a failure to exercise jurisdiction. (Also see Gummow and Hayne JJ at [77] in Applicant S395/2002 v MIMA; Appellant S396/2002 v MIMA (2003) 203 ALR 115.
In this case the Tribunal did more than make a factual error. On a fair reading of its decision it failed to deal with both bases of the claim based on political opinion. This was a misunderstanding of the whole of the applicant’s case amounting to a failure to exercise jurisdiction. The applicant’s case was presented on two distinct bases – physical and financial. The Tribunal failed to deal with the case presented to it (Dranichnikov at [23] – [24] per GUmmow and Callinan JJ). As Hayne J (who agreed with Gummow and Callinan JJ) stated in Dranichnikov at [95]:
… the Refugee Review Tribunal failed to exercise its jurisdiction, and did not give the applicant natural justice in conducting its review, because it did not consider the claim which the applicant was then making, and had earlier made, for protection.
Indeed whatever the scope of Dranichnikov, it is clear that the Tribunal failed to deal with a relevant consideration in the sense of an integer of the applicant’s claim. Its failure was not simply a failure to deal with or refer to a piece of evidence, constituting a factual error, but rather a failure to deal with one conceptually distinct part of the claim for asylum on the basis of the applicant’s political opinion. As Allsop J, with whom Spender J agreed stated in Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244 at [42]:
To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1988) 162 CLR 24; and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 …the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.
In failing to deal with an integer of the applicant’s claims the Tribunal fell into error in the manner described by Allsop J. Such failure constitutes a jurisdictional error. It led the Tribunal to misapply the law (in particular the expression “well-founded fear of persecution”) in failing to consider whether the harm feared by the applicant in this respect constituted serious harm as a denial of the applicant’s capacity to earn a livelihood within s.91R(2)(f) and hence persecution within s.91R(1). The Tribunal’s failure was material. I am satisfied that it is such that the applicant has made out an entitlement to relief.
Counsel for the respondent conceded that if the applicant established one of the two bases contended (in addition to ground 6 relating to state protection) he should succeed. Hence it is not necessary to consider the other grounds of review in the amended application.
In oral submissions counsel for the applicant sought costs in accordance with the scale contained in Schedule 1 to the Federal Magistrates Court Rules. Counsel for the respondent indicated at the conclusion of the hearing that he wished to address such a claim after the judgment was handed down. Accordingly I will hear submissions in relation to costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 24 February 2005