SZBNG v Minister for Immigration
[2006] FMCA 1008
•28 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBNG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1008 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious and political persecution in Bangladesh – whether the RRT overlooked a relevant consideration considered – whether the manner in which the RRT dealt with anonymous allegations against the applicant gave rise to an apprehension of bias considered. |
| Migration Act 1958 (Cth), s.424A |
| Applicant: | SZBNG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 511 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 13 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Ower |
| Counsel for the Respondents: | Ms S Kaur-Bains |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 511 of 2005
| SZBNG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 9 February 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. I adopt as background with additions and minor amendments the following statement of facts from paragraphs 3 through to 21 of the first respondent’s written submissions, filed on
12 July 2006.
The applicant is a citizen of Bangladesh, who arrived in Australia on 27 February 1999. On 9 April 1999 the applicant applied for a protection visa. A delegate of the respondent refused that application.
On 28 June 1999 the applicant applied to the RRT for review of the delegate’s decision (court book, pages 52-53).
On 18 December 2002 the RRT differently constituted affirmed the delegate’s decision (court book, page 79). The applicant sought review of that decision and on 20 August 2004 the Full Federal Court remitted the matter back to the RRT for reconsideration.
RRT’s decision
Prior to the hearing before the RRT, on 14 October 2004, the applicant provided the RRT with written submissions, which are contained at court book, page 161. In that statement the applicant alleged that:
a)there was a fundamentalist government in Bangladesh and Muslim people persecute the minority Hindu people, the applicant and his family;
b)the Muslim religious group killed his parents;
c)his family moved from Munsigonj to Narayangonj and the applicant was targeted by Muslim groups because he protested against their activities in looting innocent people’s houses. Further, the Muslim people burnt the applicant’s family house and killed his parents and tried to kill the applicant;
d)he left Bangladesh to come to Australia to save his life;
e)he was detained by Immigration in Australia and was “mentally assaulted” by DIMIA and Villawood management;
f)after the applicant was released in August 2004, he received a threat from Bangladesh. A BNP leader had threatened the applicant over the phone. The applicant did not know why.
The RRT in its reasons referred to this statement and listed the documents provided by the applicant (court book, page 211).
The applicant attended a hearing before the RRT and gave evidence.
The RRT put to the applicant the claims that the applicant had raised in his protection visa application and supporting statement submitted with the visa application. The applicant at the hearing said:
a)he had seen a migration agent who had got the applicant to sign a blank paper;
b)the agent then prepared the statement;
c)the statement was not correct when it referred to the applicant experiencing difficulties in Bangladesh during the period that the applicant was not in Bangladesh;
d)he was not in Bangladesh during the period from the end of 1987 to the end of 1989 and from mid 1990 to 1998 and then after 1999 (court book, page 212, 4th and 5th paragraphs);
e)admitted that he had lied to the first RRT in accepting that he had suffered the difficulties set out in his written statement (court book, pages 212, 4th paragraph).
At the hearing, the applicant, made the following claims:
a)the applicant stated that his parents were religious Hindus and that in 1986 their home was attacked and his mother was injured and later died. “They” mistreated Hindu people and they wanted him because at that time he protested about that. Also at that time, some people were against the applicant because he was critical of the student youth group. “They” robbed people and pulled down opposing posters and the applicant tried to stop them. The applicant was in conflict with the supporters of the Awami League Youth Wing, Chatra Dal. Those particular people were Muslims (court book, page 212, last paragraph);
b)the applicant stated that he had been a supporter of the BNP, not a member. The applicant’s involvement was with a Hindu community organisation of which he was regional secretary between 1983 and 1987 (court book, page 212, 2nd paragraph);
c)the applicant stated that when he returned to Bangladesh in 1998, the people he had known from college demanded money to let the applicant stay in Bangladesh or they said they would kill the applicant (court book, page 212, 6th paragraph).
At the hearing, the applicant also provided the RRT with a letter from Amnesty International Australia dated 9 November 2004 setting out country information. The RRT referred to this letter in its reasons (court book, page 216, 4th paragraph).
The RRT noted that the applicant resiled from many of his earlier claims admitting that much of his original statement, at least for the period after 1987, was untrue, which he blamed on his former agent. The RRT discounted the applicant’s evidence as set out in his statement as prepared by the applicant’s former migration agent and considered the applicant’s claims as made to the RRT, including the statement referred to at paragraph 5 above (court book, page 218, 1st and 2nd paragraphs).
The RRT, when considering whether the applicant as a minority Hindu had a well-founded fear of persecution from the Muslim Government and other Muslim groups, considered the country information, including the information provided by the applicant. The RRT found that:
a)it was not satisfied that the country information demonstrated that Hindus in Bangladesh were generally persecuted by Muslims and denied protection (court book, page 219, last paragraph);
b)the Bangladesh authorities were not condoning violence by Muslims or by local Awami League activists or others against Hindus or anyone else (court book, page 210, 5th paragraph);
c)the present Bangladesh government had taken appropriate opportunities to warn families against communal violence and taken measures to avert disturbances, and act against local gangs regardless of religious or political affiliation (court book, page 221, 1st paragraph);
d)it did not accept that the present BNP government in Bangladesh was fundamentalist or controlled by the small (Islamist) Jamat Party (court book, page 221, 3rd paragraph);
e)it did not accept that there was an ongoing violent programme against Hindus, but found that it was plausible that animosities may be particularly potent in specific places especially where they are exacerbated by ongoing personal disputes. The RRT therefore found that the individual circumstances of the applicant were significant: (court book, page 221, 4th paragraph).
The RRT then considered the individual circumstances of the applicant (court book, page 221, last paragraph).
The RRT noted the applicant’s claim that he had held office in a Hindu community organisation from 1983 to 1987. The RRT found on this basis that the applicant did not have a significant profile in local Hindu affairs which would mark him out from other Hindus in Bangladesh, other than at a very local level (court book, page 221, last paragraph).
Further, the RRT did not accept that any particular incident or harassment when organising a specific event at college in 1986 was part of an ongoing targeting of the applicant as a Hindu, but the RRT found that it was rather a part of the applicant’s broader personal conflict or difficulties with a particular group at the college (court book, page 222, 1st paragraph). The RRT accepted that at the college, the applicant came into contact and conflict with some fellow students who were involved in opportunistic extortion and violence. The RRT was satisfied that the group was concerned with the applicant’s interference and criticism of their criminal activities and did not target the applicant because of any religious or party alignment (court book, page 222, 4th full paragraph).
The RRT did not accept that the applicant’s family home had been stoned and set fire to in 1986 or that his mother had died. The RRT came to this conclusion because the circumstances of that event mirrored closely an event that the applicant said had originally occurred in 1992, but which the applicant admitted at the hearing was untrue. The RRT also noted that following the claimed attack in March 1986, the applicant remained at the same address and continued to attend college until at least March 1987 (court book, page 222, 1st full paragraph).
The RRT further found that when the applicant returned to Bangladesh for some months in 1989/1990, the demand for money by persons was an opportunistic criminal enterprise and the RRT was not satisfied that the demand was motivated for a Convention reason (court book, page 223, 1st full paragraph).
The RRT noted that the events that the applicant referred to from 1947 were events of more than 30 years ago and did not themselves give rise to a well founded fear of persecution of the applicant now (court book, page 223, 5th paragraph).
The RRT concluded that the applicant’s difficulties, which it had accepted, have been specifically with particular persons or groups in his local area where he is known and was not for a Convention related reason (court book, page 223, last paragraph).
The RRT concluded that having considered the circumstances relayed by the applicant and the relevant country material, the RRT was not satisfied the applicant faced a real chance of persecution for a Convention reason on his return to Bangladesh (court book, page 224, 2nd paragraph).
Towards the end of the hearing the RRT informed the applicant that it had seen a letter sent to the Department of Immigration earlier in 2004, making various statements and allegations about him, specifically that he had lived outside Bangladesh for a number of years up to 1998 including several years in South Korea, but also stating that his name is different from his claimed name, and making various other allegations, including alleged involvement in illegal activities before he came to Australia. The RRT gave to the applicant a letter summarising the contents of the anonymous letter and providing him with an opportunity to comment on it. The letter stated in part:
Earlier in 2004, an anonymous letter was sent to the Department of Immigration. It stated that the applicant’s real name is …, that he was wanted by the police in Bangladesh for armed robbery, and that he was involved with another person in smuggling people and drugs in the border areas of Thailand, Malaysia, Myanmar and Laos until he was caught by the Malaysian authorities and charged with people smuggling. It was alleged that while on bail the applicant slipped into Thailand, from where he entered South Korea where he remained unlawfully for a number of years. It was stated that after serving a one year jail sentence in South Korea, the applicant was deported to India (because he had entered Korea on an Indian passport), from where he subsequently returned to Bangladesh by land. It was stated that the Applicant changed his name, date of birth and other details to avoid the attention of the authorities and eventually obtained a student visa to come to Australia.
The applicant was invited to comment on this information by 2 December 2004.
The applicant telephoned the RRT on 19 November 2004 to express his concern about the anonymous letter and to deny the allegations in it. He asserted that the allegations were motivated by animosity, possibly related to complaints he had made against his former migration agents to the Migration Agents Registration Authority (MARA). He also responded in writing in similar terms (court book, pages 187-189).
The application
These proceedings began with a judicial review application filed on 28 February 2005. An amended application was filed on 8 June 2005. The first respondent’s written submissions were directed to that amended application as well as written submissions prepared in advance of the trial of this matter by counsel for the applicant. At the trial of this matter, Mr Ower, for the applicant, sought the opportunity to further amend the application to abandon the grounds advanced in the amended application and to substitute the grounds to which his written submissions were directed. I accepted an undertaking given on behalf of the applicant by Mr Ower for a further amended application to be filed and served within seven days of the trial of the matter on 13 July 2006.
A further amended application was filed on 14 July 2006 which raises the following grounds:
1.The Second Respondent failed to properly address the claim being made by the Applicant.
2.The Second Respondent was guilty of perceived pre-judgement or bias in dealing with the “anonymous letter” forwarded to the First Respondent.
Submissions
The applicant asserts that the RRT overlooked an element or integer of his claim of a well-founded fear of persecution in that the RRT did not consider as a separate claim his claim to have been threatened as a Hindu opposed to corruption. As put to me by Mr Ower at the trial, this is said to constitute a particular social group claim. In the alternative, the applicant asserts that the RRT erred in failing to consider the cumulative impact of being both a member of the minority Hindu religious group and being actively opposed to corruption in Bangladesh. The applicant relies upon the decision of the Full Federal Court in Rajaratnam v Minister for Immigration [2000] FCA 1111 at [46]-[50]. The applicant further relies upon the decision of this Court in SZEPY v Minister for Immigration & Anor [2006] FMCA 31 at[16].
Secondly, the applicant asserts that the RRT demonstrated bias in the manner in which it dealt with the anonymous letter making allegations against the applicant. The applicant asserts that a reasonable apprehension of bias is created by the delay in raising that matter with the applicant at the hearing conducted by the RRT and the manner in which the letter was ultimately dealt with by the RRT.
The first respondent submits that no jurisdictional error has been demonstrated. Ms Kaur-Bains submits that the issue of the applicant’s opposition to corruption is more properly viewed as an item of evidence rather than as an element or integer of the applicant’s claims but, to the extent that it did form part of his claims it was considered. She submits that, on a fair reading of the reasons for decision of the RRT, there was an adequate consideration of the issue of opposition to corruption coupled with the applicant’s religion. The Minister relies upon the decision of the Full Federal Court in VQAB v Minister for Immigration [2004] FCAFC 104 in relation to the distinction to be drawn between elements or integers of the claim and evidence.
In any event, Ms Kaur-Bains submits that even if an error has been demonstrated in the manner in which the RRT dealt with the applicant’s claims of opposition to corruption in Bangladesh, the decision is independently supported by the findings of the availability of internal state protection. The Minister relies upon the decision of the High Court in Appellant S152/2003 v Minister for Immigration [2004] HCA 18 at [26]. Ms Kaur-Bains submits that the RRT’s findings on the issue of state protection are unimpeachable and accordingly, even if jurisdictional error was demonstrated, relief in the form of constitutional writs remitting the matter to the RRT should be withheld in the exercise of discretion.
In relation to the bias claim, Ms Kaur-Bains submits that the RRT met its statutory obligation under s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) by disclosing the anonymous letter to the applicant[1]. Ms Kaur-Bains further submits that (noting that s.422B has no application to this case) the RRT met its common law obligation of disclosure in the discussion that occurred at the hearing conducted by the RRT about the letter[2]. In any event, the written disclosure of the contents of the letter more than met any common law duty of disclosure. Ms Kaur-Bains submits that no implication of bias can be drawn from the act of disclosure of the letter (which was a legal obligation) or the manner in which the RRT ultimately dealt with the letter (it was disregarded). Further, Ms Kaur-Bains in her oral submissions put to me that it may have been inappropriate for the RRT to raise the letter with the applicant at the outset of the hearing because, given the applicant’s other problems of credibility adverted to by the presiding member, such an immediate confrontation might have indicated pre judgement and might have so unsettled the applicant that he could not have properly continued with the hearing.
[1] see court book, page 181
[2] see court book, page 216
Reasoning
Mr Ower was unable to point to any express claim by the applicant to assert persecution as a member of a particular social group comprised of Hindus opposed to corruption. He submits, rather, that the claim should have been taken to arise by implication from the claims put by the applicant. The claims put by the applicant were limited to what he had included in a statement accompanying his review application[3], and what he said at the hearing conducted by the RRT on 18 November 2004. The applicant expressly resiled from his original protection visa claims which he admitted were untrue and which he blamed upon a former migration agent. The applicant also admitted lying at the first RRT hearing and resiled during the course of the hearing before the second RRT from part of his political claim (he admitted he was not a member of the Bangladesh National Party)[4]. The applicant also resiled at the second RRT hearing from his claim to be involved with a Hindu organisation from 1996 onwards at a time when he was not in Bangladesh[5].
[3] court book, pages 54 and 55
[4] see court book, page 213
[5] see court book, page 221
The RRT was left with a claim in a state of some disarray and uncertainty. The claim of political persecution appeared to be left with no substance to it and the RRT rejected it[6]. There was an extant claim of religious persecution as a Hindu and a claim that the risk of harm resulted from opposition to corruption and extortion attempts. I accept the Minister’s submissions that the applicant’s claims, as they stood at the time of the second RRT hearing, were considered and adequately so. I adopt the following with minor amendments from paragraphs 34 to 41 of Ms Kaur-Bains’ written submissions.
[6] see court book, pages 222-223
The applicant says part of his claim was that he had a well-founded fear of persecution by reason of being a Hindu who was opposed to corruption. The applicant says the RRT failed to consider this claim and points to the fact that the claim is not listed at court book, pages 218 to 219. Further, the applicant relies on the second full paragraph at court book, page 223 where the RRT states that the applicant stated that he opposed corruption in Bangladesh, but “he did not particularise any harassment or targeting of him for this reason (as against his criticism of the extortion and violence by local student groups).” The applicant says that this statement shows that the RRT did not consider the said claim.
The applicant’s claim that he had been threatened because he was opposed to corruption (at court book, page 215, 3rd paragraph), was arguably only a piece of evidence advanced by the applicant in support of his claim that he had a well-founded fear of persecution for reasons of being a prominent local Hindu (court book, pages 218, last paragraph). Even if it formed an element or integer of the applicant’s claims, it was adequately considered.
As stated at court book, page 215, 3rd paragraph, the applicant’s claim was that he was a Hindu community organisation secretary in his local area from 1983 to 1987 and from that time he was targeted. As Hindus the group was opposed to corruption. The Muslims as the majority were behind the corruption and the applicant had been threatened because he was opposed to corruption.
The RRT then at court book, page 221, last paragraph, found that it did not accept that the applicant had a particularly significant profile in local Hindu affairs, which would mark him out from other Hindus in Bangladesh. The RRT then at court book, page 222, 4th paragraph again referred to the applicant’s evidence that he stated that because he was a Hindu he was opposed to corruption and therefore he came into conflict with some fellow students at college. The RRT found the group at college were concerned with the applicant’s interference with the criticism of their criminal activities and did not target the applicant essentially or significantly because of any religious or party alignment.
The RRT then went on at court book, page 223, first paragraph, to note that the applicant’s claim was that the difficulties occurred in 1986 and 1987. The applicant did not report any further difficulties with the group when he was back in Bangladesh for some months in 1989/1990 and in 1998 the applicant stated that demands for money were being made to leave the applicant alone. The RRT found it was satisfied that the demand was being made for criminal reasons and not for essentially and significantly Convention reasons.
The RRT then at court book, pages 223, second paragraph, noted that the applicant claimed he was opposed to corruption. The RRT then stated that the applicant had not “particularised” any harassment or targeting of him for this reason. The RRT was simply stating that the applicant had not provided details. This was a correct statement, since the applicant had only stated he had been threatened because he opposed corruption. In any event the RRT at court book, pages 223, third paragraph, finds that if the applicant was targeted then it was not essentially and significantly for a Convention reason. The RRT then went on to find that if the applicant was targeted then there was adequate state protection.
In summary, the RRT dealt with the applicant’s evidence that he had been threatened because he was opposed to corruption and dealt with the claim that relied upon that evidence.
No jurisdictional error is disclosed in relation to the first ground.
There is no substance to the claim of apprehended bias. The applicant had the misfortune to have been formerly represented by a now discredited migration agent. Although the presiding member was troubled by the applicant’s admission of having made false protection visa claims and of having lied to the first RRT, the presiding member considered the applicant’s claims made to him on their merits, taking into account the applicant’s explanation that his previous untruthfulness was the fault of his migration agent. It was unnecessary, and may have been inappropriate, to confront the applicant with the anonymous letter at the outset of the hearing. The applicant had admitted lying in the past. If he was confronted at the outset of the hearing with an allegation that he was a continuing liar the applicant may have had cause to complain that the presiding member had indicated pre judgement. Further, the applicant may have had cause to complain that the hearing was unfair because of the impact that such a revelation had on him. The allegations against the applicant in the anonymous letter were extremely serious and would have sufficiently unsettled many people to the extent of adversely affecting their ability to present arguments. The appropriate and preferable course, in my view, was the one taken by the presiding member to raise the letter with the applicant at the end of the hearing, to present him with a written invitation to comment upon it and to give the applicant the opportunity to reply in writing. That course also met the RRT’s obligations both under the Migration Act and the general law.
On the basis of the record of the RRT decision[7] the presiding member not only took into account the applicant’s response to the s.424A letter and his associated oral complaint to the RRT, but properly disregarded the anonymous letter. The presiding member said:
The Tribunal places no weight at all upon the anonymous letter sent to the Department alleging criminal conduct by the Applicant. It is quite plausible, and the Tribunal accepts, that it was sent by a person in Australia with some knowledge of the Applicant’s affairs and a animus against him and (as is almost always the case with anonymous information) cannot be relied upon as independent evidence.[8]
[7] see court book, pages 217-219
[8] see court book, page 219
Far from being indicative of an apprehension of bias, the approach taken by the presiding member was commendable.
I find that the decision of the RRT was free from jurisdictional error. The decision is therefore a privative clause decision and the application should be dismissed. In making that finding, I note that I have not dealt with the question of the Court’s exercise of discretion to withhold relief in the event that jurisdictional error had been established. It is unnecessary to do so. I observe, however, that the question of the adequacy of state protection in particular countries is a difficult one and Bangladesh is no exception. In order to withhold relief on the basis of futility because of the finding of effective State protection, it would not have been sufficient that the finding was supported by country information. I would have needed to be confident that the outcome would have been the same following a further RRT hearing.
I will order that the application be dismissed.
As to costs, having regard to the amount of preparation required, including costs thrown away in the preparation of written submissions on behalf of the Minister directed to the grounds in the amended application which were abandoned at the trial, a proper party/party assessment of costs is $5,000. I will order the applicant to pay that amount.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 28 July 2006
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