SZBCD v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 352

FEDERAL COURT OF AUSTRALIA

SZBCD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 352

MIGRATION – No point of principle

SZBCD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1931 OF 2004

MOORE J
8 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1931 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBCD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	8 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant 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 1931 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	MOORE J
DATE:	8 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate of 9 December 2004 dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal").  The appellant arrived in Australia on 11 June 2002.  On 12 July 2002 he applied for a protection visa (class XA) with the Department of Immigration and Multicultural and Indigenous Affairs.  On 30 July 2002 the delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refused to grant the visa.  The appellant applied for review of that decision on 20 August 2002.  On 16 July 2003 the Tribunal handed down its reasons for decision affirming the decision of the delegate not to grant the appellant a protection visa.

   Claims and evidence

2. The appellant made the following claims in support of his application.  The appellant is a citizen of Bangladesh, a medical practitioner and a Muslim.  He claimed to fear persecution by reason of political opinion because of his political activities and membership of the Awami League ("AL").  He no longer felt able to attend his surgery after the people in his area accused him of performing abortions, which were against Islamic law.  He was a legally qualified medical practitioner and worked as a Senior Medical Officer in an Islamic mission under the Islamic Foundation of Bangladesh. 

3. In 1975 the appellant joined the student wing of the AL, the Chattra League.  In 1979 he changed to medical studies which he completed in May 1986.  He completed his internship in October 1987.  During his medical studies he was an active member of the party, being elected as Joint Secretary of the Rangpur Medical College Branch of the Chattra League and later being promoted to Assistant Vice President of the "BCL" at his college.  Since his college political career he has been targeted by the Bangladesh Nationalist Party ("BNP") that controlled Rangpur.

4. He began work as a medical practitioner in 1988 and continued his involvement with the AL.  In the early 1990s, BNP leaders targeted him because of his support for the AL and, in 1994 during anti government riots, he was suspected of having been involved in the death of a worker of the BNP student wing.  False charges were laid against him.  They were dropped in 1996 when the AL came to power. 

5. After the riots some of his supporters were arrested and he went into hiding.  In September 1994 he was attacked in a local market place by "BNP terrorists".  Following that, he maintained a low profile from 1994 to 1995.  The BNP and police were searching for him. 

6. Between 1996 and September 2001 while the AL held power, he had no problems.  The appellant stood for nomination before the October 2001 elections but was not selected.  After the selected candidate lost in the elections the candidate left the country.  The appellant also left, going to India for a couple of days.  When he returned, the shed on the agricultural property he had inherited from his father had been burnt along with the harvested crop inside. 

7. After the October 2001 elections, rumours began that the appellant performed abortions.  He was attacked for allegedly carrying out these illegal abortions.  Both his life and livelihood were in danger.  The appellant moved his family to Dhaka in December 2001.  Since arriving in Australia his family has told him he would be killed by the BNP if he returns.  He claims he will be found anywhere that he goes in Bangladesh.

   The Tribunal's decision

8. The Tribunal accepted the appellant had been actively involved in the student wing but found the appellant did not have a significant political profile, had not held any official positions in the AL, and his involvement in politics was low level and highly localised. 

9. The Tribunal could not be satisfied that his shed was burnt for political reasons and found the incident did not cause the appellant serious harm or significant economic hardship that threatened his capacity to subsist.  While the Tribunal accepted he may have been attacked and chased in 1994, it noted he was able to hide and only suffered minor injuries.  The false charges were dismissed in 1996.  The Tribunal found the appellant's experiences, "individually or accumulatively [sic]", did not amount to persecution. 

10. The Tribunal noted that the newspaper article dated 28 July 2002 alleging the appellant's involvement in illegal abortions contradicted aspects of the appellant's oral evidence to the Tribunal.  This was for two reasons.  First, the appellant had said at the hearing that the accusations against him started after October 2001 when the AL had lost power. The article said "vigilant members of the locality tried to stop the doctor" but as the AL was in power they were not successful.  After the BNP came to power "the people began to incite one another against the activities of the doctor".  The Tribunal found the article implied that rumours or accusations and efforts to "stop" the appellant began when the AL was in power and that this was inconsistent with the appellant's evidence at the hearing that the accusations against him started after October 2001.  The second reason was the article said the appellant left on 20 April 2001 whereas the appellant claimed to have stayed until June 2002.  While the appellant claimed any inconsistencies were due to a translation error or an error of the reporter the Tribunal did not attach any weight to the newspaper article and did not accept the appellant's claim. 

11. The Tribunal was not satisfied that even if it accepted accusations were levelled at the appellant, that they put him at a real risk of harm in Bangladesh.  It noted he continued to work at the Islamic Foundation and operate his own surgery in Maulavibazar.

12. The Tribunal noted the appellant lived in a flat behind his private surgery for seven months before leaving for Australia and that those who wanted to harm him had ample opportunity if they seriously intended to do so and nothing had in fact happened.  The Tribunal went on to determine that it would be reasonable for the appellant to relocate to a different part of Bangladesh.

    The Federal Magistrate's judgment

13. The appellant claimed the Tribunal exceeded its jurisdiction by failing to afford him procedural fairness and natural justice.  He claimed the Tribunal was under an obligation to verify the authenticity of the documents before calling them into question.  The Federal Magistrate noted the Tribunal did not question the genuineness of two letters submitted in support of his application.  Rather, it preferred its independent information.  The appellant claimed the Tribunal exceeded its jurisdiction by failing to inquire into the situation in Bangladesh.  The Federal Magistrate noted there was no obligation on the Tribunal to inquire under the Migration Act 1958 (Cth) ("the Act"). The Federal Magistrate noted the Tribunal did not make a finding that the appellant was dishonest, but rather it was not satisfied he was someone to whom Australia owed protection obligations. The appellant claimed the Tribunal failed to observe the requirements of subss 424A(1) and 418(3), however no particulars were provided. The Federal Magistrate noted that it could be inferred from the decision that the Tribunal considered his subjective fear (another matter the appellant complained about) and was aware of the necessity to consider it as part of considering more generally whether the appellant had a well founded fear of persecution.

    The appeal and its disposition

14. The appellant's notice of appeal repeated criticisms of the Tribunal's decision as did the written submissions filed by the appellant.  No error of the Federal Magistrate was identified.  The issues raised by the appellant having regard to the notice of appeal and the written submissions appear to be:

    (i)The Tribunal did not comply with s 424A(1) of the Act.

    (ii)The Tribunal failed to afford procedural fairness which included its failure to put to the appellant documents, country information or issues for him to respond to and it failed to make adequate inquiries.

    (iii)The Tribunal did not act bona fide.

    (iv)The Tribunal acted on out-dated reports.

    (v)The Tribunal failed to verify documents he furnished in support of this case.

    (vi)The Tribunal made findings about his political activities which were not supported by any positive evidence.

    (vii)The Tribunal failed to take into account documents he provided.

    (viii)The Tribunal had a closed mind.

15. The Tribunal's reasoning is not entirely compelling.  It appears to have accepted virtually all of the appellant's account of his experiences in Bangladesh.  That is, he had been active at a low level in the AL, he had been attacked in 1994, false charges had been brought against him in 1995 and after the elections in October 2001 which the AL lost, a shed on agricultural land he owned was burnt.  One aspect of his experiences the Tribunal did not accept was that he had been falsely accused after the October 2001 elections of operating an illegal abortion clinic.  Its rejection of this claim appears to have been based on what were thought to be inconsistencies between his account and an account in a newspaper article he furnished to corroborate his account.  Indeed the Tribunal said the article contradicted aspects of the appellant's oral evidence. 

16. The Tribunal appeared to identify two inconsistencies or contradictions.  One was that the article suggested the accusations occurred while the AL was in power (that is, before October 2001) whereas the appellant had said they started after the elections.  It is true that the article can be read as suggesting the accusations began while the AL was in power.  I am not sure that can be characterised, however, as a contradiction. 

17. The second was that the article indicated the appellant left the locality in April 2001 whereas his account was he left in June 2002.  However, it is plain that the article was discussing, amongst other things, accusations which had been made in the locality about the appellant after the October 2001 elections.  The clear implication was that the appellant was still in the locality at that time.  It seems fairly clear that the appellant's explanation that the reference to him leaving in April 2001 was either a translation error or error on the part of the reporter, was entirely plausible.  In any event, it is difficult to see how, logically, the Tribunal could reject two accounts of events involving accusations about the appellant simply because they were inconsistent. 

18. If it was rejecting the newspaper account because it was inconsistent with the account of the appellant, then this rather suggests that the Tribunal was proceeding on the basis that it accepted the appellant's account.  However the Tribunal was not prepared to accept the appellant's account though proffers no reasons why.  Had it accepted his account then a picture would have emerged of fairly sustained activity against the appellant over a number of years because of his political opinion.

19. Ultimately, the matters referred to in the preceding paragraph could not sustain a finding of jurisdictional error.  The Tribunal was later prepared to assume that the accusations had been levelled against him but observed that they had not resulted in any serious harm.  Another critical comment that can be made about the approach of the Tribunal is that it appears to have considered each significant incident in isolation and asked whether the appellant experienced harm.  For example, it said of the burnt shed that it did not cause serious harm or significant economic hardship to the appellant.  That involves too narrow an analysis of the evidence given that the appellant appears to have been exposed to a course of conduct, or at least a series of incidents, which should have been viewed collectively or cumulatively.  However it has to be said that the Tribunal did at one point in its reasons say (in the context of discussing the 1994 attack and the 1995 false case) that the "applicant's experiences, assessed individually or accumulatively [sic], [do not] amount to persecution within the meaning of the Convention".  This would suggest that the Tribunal was alive to the need to consider the appellant's experiences cumulatively even though, in much of its reasoning, it considered events in isolation.

20. As to the specific complaints made in the notice of appeal and the written submissions, I am not satisfied any are made out nor am I satisfied the Federal Magistrate erred in dismissing the appellant's application. For the reasons summarised briefly at [13] above the Federal Magistrate was correct in rejecting the grounds raised before him. What might be viewed as additional grounds raised in the appeal, are only variations of the grounds raised below and should be rejected the same reasons.

21. 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:             8 April 2005

The Appellant appeared in person.
Counsel for the Respondent:	M Allars
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	15 March 2005
Date of Judgment:	8 April 2005