SZBNQ v Minister for Immigration
[2005] FMCA 304
•9 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBNQ v MINISTER FOR IMMIGRATION | [2005] FMCA 304 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether a lack of procedural fairness or breach of Migration Act – whether no evidence – whether Tribunal obliged to consider the question of effective state protection. |
| Migration Act 1958, ss.424, 424A; 422B and 427 |
| NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 NAMW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 264 A234/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 110 Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 41 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Win v Minister for Immigration & Multicultural Affairs [2001] FCA 1451 Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZBNQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2020 of 2003 |
| Judgment of: | Barnes FM |
| Hearing date: | 9 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr JD Smith |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application is dismissed.
That the applicant pay the respondent's costs set in the amount of $4,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2020 of 2003
| SZBNQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This an application for a review of a decision of the Refugee Review Tribunal handed down on 23 September 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, a citizen of Bangladesh, arrived in Australia on 21 June 2002. He applied for a protection visa. The application was refused. He sought review by the Tribunal. He attended a Tribunal hearing.
The applicant claimed to fear persecution for reason of his political opinion. He claimed that he was a member of the Bangladesh Chattra League (the BCL), the youth wing of the Awami League, and that he was targeted by the BNP because of this. He also claimed that he was targeted by a group he described as Marxists-Leninists called Shorboharas (or Sarbahara) because of his outspoken views and statements against it. He claimed that false cases had been registered against him in 1995 and hence that he feared the police.
The Tribunal accepted that the applicant was a member of BCL and the organising secretary of the party in his village in Bangladesh, consistent with documentary evidence he had provided to that effect. However it had regard to the activities he claimed to have engaged in, the limited geographical scope of his activities in his local area and his unsatisfactory knowledge about the Awami League’s platform and policies and concluded that he was not engaged in political activities at a level that gave him a significant political profile in Bangladesh.
It went on to consider the specific claims of the applicant. The applicant claimed that he had received threats, including a threat that he had been sentenced to death in 1994 by the Sarbahara and that the Chattra Dal and the Sarbahara had hired hooligans to kill him and other political leaders. The Tribunal was satisfied however that those making the threats never intended to go through with them and merely intended to intimidate the applicant. It had regard to the time that had elapsed between the claimed making of these threats and the applicant's departure from Bangladesh in 2002, and to the absence of any evidence that there had been any attempts to carry out such threats, despite the fact that the applicant had travelled to and fro between Dhaka and his local village and continued with work and study in Dhaka. The Tribunal concluded that if these organisations had seriously intended to act upon the threats they had ample opportunity to do so. On the facts before it, including the applicant's conduct, it was satisfied that the applicant did not seriously feel threatened and that those making the threats did not seriously intend to act on them. Hence the threats did not constitute serious harm amounting to persecution and the chance of the applicant facing serious harm from those who had made the threats was remote.
The claim about false cases was uncorroborated. The Tribunal found that even if false cases were registered against the applicant in 1995, there was no evidence to suggest that the police had taken such cases seriously or had in any way acted on them. It reached this finding on the basis of the applicant's own evidence about the inaction of the police and his conduct in Bangladesh and his evidence that politically motivated cases are common in Bangladesh, that the police are aware of this and cannot be bothered looking for everyone, as well as independent evidence that the police carry out checks before issuing passports. The Tribunal was not satisfied that the police had a genuine interest in the applicant and found the claim of false cases did not give rise to any real chance of persecution in the reasonably foreseeable future.
The Tribunal accepted that the applicant had participated in some political violence, particularly in December 1995. However he had suffered no harm. The Tribunal had regard to independent evidence about the prevalence of violence between political parties and between factions as part of the political milieu of Bangladesh. It found such evidence did not necessarily mean that there was persecution within the meaning of the Convention. As to the claim, made in three affidavits from the applicant’s brother, uncle and friend, that he had been severely beaten by the police when demonstrating at a peaceful rally in March 2002, the Tribunal had regard to inconsistent evidence in that respect and the applicant's changes in evidence when the claims in the affidavits were put to him in the Tribunal hearing. It was satisfied, having regard to his contrary oral evidence, that the affidavits provided in support of the claim were fraudulent or, at the least, had not been signed in good faith. The Tribunal was satisfied that the applicant did not suffer any harm for reason of his political opinion in March 2002.
The Tribunal had regard to independent country information in relation to the situation in Bangladesh. It found that, on the applicant’s evidence, the chance that he would resume his political activity on return to Bangladesh was remote. In any event, on the basis of independent evidence showing that political activists who engage only in legitimate political activities and advocacy usually have little or nothing to fear from rival political groups, it found that there was no real chance that the applicant would face harm as a result of resuming such political activity. It was satisfied that his chance of facing serious harm by Sarbaharas for the reason of his political opinion was remote, given that nothing had occurred in the past and the time that had elapsed.
The Tribunal also had regard to a newspaper article provided in support of a claim that the applicant’s house was attacked and his brother assaulted after he had left Bangladesh. It found that if the applicant remained fearful of political violence in his local area it was reasonable for him to relocate. It had regard to the nature of the claims the applicant had made and the situation in Bangladesh, his past activities in Bangladesh, and his personal attributes in finding that it was reasonable, in all the circumstances for him to relocate. It specifically referred to the news items and reports provided by the applicant in support of his application for review, but found them to generally confirm the independent evidence before the Tribunal and not to add anything of value to his evidence.
On the basis of these findings, the Tribunal concluded that the applicant's fear of persecution for reason of his political opinion was not well founded and that he was not a person to whom Australia had protection obligations.
The applicant sought review of the Tribunal decision by application filed in this Court. He now relies on an amended application filed on 9 March 2004. He raised a number of grounds in that amended application. He raised somewhat different grounds in written submissions which were not provided to the solicitors for the respondent before the hearing but have been comprehensively addressed by counsel for the respondent today. He also raised a number of issues in oral submissions.
The amended application relies generally on two grounds, but then gives a number of particulars, each of which may be seen as raising grounds and which I will address. The grounds are first that the Tribunal failed to accord the applicant procedural fairness as required under sections 424A(1) and 418(3) of the Migration Act 1958 and second that the Tribunal member did not consider the applicant’s evidence and the decision was affected by error of law, lack of procedural fairness and denial of natural justice.
The first particular is that the Tribunal did not provide the applicant with particulars of information in the Australian Embassy reports or any other adverse materials which formed part of the reason for the Tribunal's decision and that this was an error of law and involved a lack of procedural fairness. The evidentiary basis for this claim is not established. There was no transcript of the Tribunal hearing before the Court and this is not a case which, on the material before the Court, it is appropriate to infer that the Tribunal did not raise particular matters with the applicant in the course of the hearing. (See NAOA v MIMIA [2004] FCAFC 241and compare NAMW v MIMIA [2004] FCAFC 264). The statement of reasons does not purport to be a complete record of the Tribunal hearing. Insofar as the reasons do canvass what occurred in the hearing they indicate that the Tribunal did give the applicant the opportunity to address critical issues and independent country information. Specific reference is made to issues such as police checks before issuing passports and independent information in relation to targeting of prominent politicians.
Insofar as this claim relies on section 424A(1) of the Migration Act, the adverse materials referred to by the applicant and relied on by the Tribunal was not specifically about the applicant or any other person. Thus there was no obligation on the Tribunal to give particulars of the information contained therein under section 424A(1) as such information is within the exception in section 424A(3)(a) (see NAMWv MIMIA [2004] FCAFC 264). Section 418(3) does not impose an obligation on the Tribunal.
Associated with this ground is the ground in paragraph (d) of the particulars, that the Tribunal failed to consider or refer to evidence before the delegate in Part B of the Departmental decision record and to the ‘vast evidence’ supplied by the applicant, and that this constituted a lack of procedural fairness or an error of law. The delegate's decision predated the decision of the Tribunal by something in the order of 12 months. The delegate did refer to a number of items of independent country information, as set out in that decision. However, in its reasons for decision, the Tribunal not only stated that it had the Department's file, including the decision record, before it but also that it had regard to the material referred to in the delegate's decision and other material available to it from a range of sources. There are two express references to some of that independent country information in the Tribunal decision. Beyond that, a considerable amount of the information referred to in the Tribunal decision postdates the delegate's decision, or canvasses issues not the subject of consideration in the delegate's decision, such as the position of the Sarbahara party. On the material before me there is no basis to justify the assertion that the Tribunal failed to consider the material before the delegate in a manner constituting jurisdictional error.
As to the information provided to the Tribunal by the applicant, the Tribunal reasons for decision set out the information provided in summary form, noting not only the applicant's initial statement in support of his application, but also the documents provided in support of the application for review. Its reasons for decision also reveal that it discussed some of this material with the applicant at the hearing including, importantly, the three almost identical affidavits in support of his application and that it specifically addressed the relevance of the country information provided by the applicant.
In those circumstances, it has not been established that there was any jurisdictional error in the manner contended. The applicant's complaint is that the Tribunal failed to have regard to, or refer, to the vast evidence that he provided. However it is not necessary for the Tribunal to refer to every item of evidence provided in support of a claim. It has not been established that the Tribunal failed (in a manner amounting to a lack of procedural fairness or other jurisdictional error) to consider properly the claims, or integers of the claims, made by the applicant.
Particular (b) of the amended application contends that the Tribunal fell into jurisdictional error in assessing whether or not the State was able to offer adequate protection to the applicant in that it failed to deal with that issue and that in doing so there was a constructive failure to exercise jurisdiction, an error of law and/or a lack of procedural fairness. However in this case the Tribunal found, based on its consideration of the claims made by the applicant in support of his application, that the applicant did not have a well-founded fear or persecution. Hence it was not necessary for the Tribunal to expressly consider the willingness or ability of the State to provide protection.
The applicant had claimed to fear harm from the BNP, the Sarbahara and from the police enforcing or prosecuting false cases and had also claimed that the police would not help him in relation to the feared harm. However the Tribunal did not accept that the applicant would come to any harm from any of those sources. This meant that the question of effective state protection did not arise for express consideration. (See A234/2003 v MIMIA [2003] FCA 110 at [60] – [67]).
Finally, the amended application in paragraph (c) contends that the Tribunal's decision was not supported by any evidence in relation to applicant's credibility as a truthful witness. It was contended that the Tribunal therefore made wrong findings and ignored the applicant's genuine persecution and that it gave little weight to the applicant's evidence, US State reports, Amnesty International reports and other sources suggesting that the applicant was a genuine refugee.
To some extent this ground takes issue with the merits of the Tribunal decision. The Tribunal decision did not turn on a general finding of credit but, rather, on the Tribunal analysis of each claim and the evidence given by the applicant (including some conflicts in his evidence) particularly in relation to the events of March 2002, as well as the country information available to the Tribunal.
Insofar as the applicant's complaint is the weight given to particular items of independent information, questions of weight are a matter for the Tribunal (see MIEA v Pochi (1980) 44 FLR 41). It cannot be said on the Tribunal reasons for decision that it erred in giving little weight to the applicant's evidence as contended. Rather, it found that even on the basis that the factual claims made by the applicant had occurred (other than the claimed beating in March 2002) these matters did not establish the claim that the applicant was a genuine refugee, in the sense of having a well-founded fear of persecution for reason of his political opinion. As to the claims about March 2002 it gave reasons, which were open to it on the material before it, for rejecting these claims – in particular the inconsistent evidence of the applicant and the changes in his evidence when the affidavit evidence was discussed.
The applicant also filed written submissions which set out five grounds, but then go on to address a number of issues which do not relate directly to the five grounds. The submissions also repeat his factual claims. The repetition of his factual claims and his further factual claims based on the present situation in Bangladesh do not establish a jurisdictional error on the part of the Tribunal. I have dealt with those aspects of the written submissions that go beyond the amended application.
The first ground in the written submission is that the Tribunal failed to act in a bona fide manner in relation to making its decision. This ground was not elaborated on the rest of the written submission or in oral submissions. Moreover, it is clear on the material before the Court that there is nothing to support a claim of a lack of a bona fides or a claim that the Tribunal did anything other than make a genuine attempt to review the decision of the delegate. There is nothing to indicate that the Tribunal came to any capricious findings that were not open to it, or that it adopted any procedures for no apparent reason. There is no basis for the contention that the Tribunal failed to act in a bona fide manner.
In paragraph (d) it is contended is that the decision relied upon outdated and generalised country information to determine the state of affairs in Bangladesh rather than specific information related to the applicant’s claim. This overlaps with the grounds raised in the amended application. However, as indicated, the weight to be given to particular items of country information is a matter for the Tribunal. It cannot be said that the Tribunal relied on outdated country information. Indeed much of the information referred to in fact post-dated the delegate's decision. The Tribunal not only referred to country information but had regard to the specific aspects of the applicant's claims and the documents in support of his claims.
In paragraphs (b), (c) and (e) the applicant raised grounds of a lack of procedural fairness, breach of ss.424A(1) and 418(3) and contended that the Tribunal failed to consider documents and evidence in his favour and did not investigate the matter at all.
Dealing with the consecutive paragraphs of argument in the applicant's written submission which elaborate on these matters: it is contended that the Tribunal was obliged to verify the authenticity of documents and evidence of the applicant through official channels before calling it into question. There is no such obligation on the Tribunal. (See MIMIA v SGLB (2004) 207 ALR 12, per Gummow and Heyne JJ, pointing out that there is no duty on the Tribunal to make such inquiry under sections 424 or 427). Nor is there such an obligation as an incident of the obligations of procedural fairness in the circumstances of this case.
The applicant did not explain what documents and evidence were in issue. The documents before the Tribunal were firstly the documents in relation to the applicant's position in his political party. However the claims in this respect were accepted by the Tribunal. The other documents before the Tribunal relating specifically to the applicant were the three supporting affidavits from members of his family. According to the Tribunal reasons for decision the Tribunal raised its concerns about inconsistencies between these documents and the applicant's evidence in the course of the hearing. It then proceeded on the basis of the applicant's own contrary evidence in finding that such affidavits, at the least, had not been signed in good faith. Authentication as to the source of such documents would have made no difference to the Tribunal conclusion. It was not necessary to make such inquiries to afford the applicant procedural fairness given the manner in which the Tribunal made its findings. The Tribunal also had regard to the untranslated Bengali news item claimed to be in relation to an attack on the applicant's younger brother. It did not dispute the authenticity of the document, but rather found that if the applicant remained fearful of political violence it was reasonable for him to relocate. In short then, it has not been established that the Tribunal was under an obligation to authenticate documents and evidence in the manner contended, or, more generally, that this was a case in which it was necessary for the Tribunal to make further inquiries.
Nor, contrary to the applicant's contention, was the Tribunal obliged under section 424A of the Migration Act to put its preliminary findings or thought processes or reasoning to the applicant for comment - Win v MIMA [2001] FCA 1451 and Sackville J in Tin v MIMA [2000] FCA 1109.
Insofar as a contention is put in terms of natural justice in relation to whether the applicant had an opportunity comment on findings or information, in the absence of a transcript of the Tribunal hearing it cannot be inferred that the Tribunal failed to put particular matters to the applicant. To the contrary, the description of what occurred in the hearing in the Tribunal reasons for decision indicates that critical issues were raised with the applicant.
An argument is raised that refers to section 422B of the Migration Act. The argument is not clearly expressed, but in any event it is not necessary in the particular circumstances of this case, to consider the precise scope of section 422B as it has not been established that there has been any lack of procedural fairness. Similarly, the contention that notions of basic fairness require the Tribunal to give a party an opportunity to address a potential finding of dishonesty does not establish a jurisdictional error in this case. The evidentiary basis for such a claim is not established and in fact it does appear that the Tribunal raised with the applicant its concerns, particularly in relation to the inconsistencies between his evidence and the supporting affidavits. Moreover, there is no finding of dishonesty as such relied upon by the Tribunal in its findings and reasons.
The applicant repeated his claim that the Tribunal’s adverse findings were not supported by any positive evidence. As Gummow and Hayne JJ stated in Abebe v Commonwealth of Australia (1999) 197 CLR 510 it is for the applicant to put forward material in support of his claim and for the Tribunal to consider whether it accepts or rejects such material. It is not necessary for the Tribunal to have positive evidence before it in order to disbelieve the applicant's claims. (See Randhawa v MILGEA (1994) 52 FCR 437). Moreover there was in fact some evidence, which might be described as positive evidence, before the Tribunal insofar as it accepted the applicant's claims in particular respects but nevertheless found that objectively his fear of persecution was well-founded. These findings were based on his own evidence of what had occurred to him as well as independent country information.
The applicant also contended that the Tribunal was in error in deciding the case without any proper evidence and inquiries by DFAT, the Department of Foreign Affairs and Trade, and the Australian High Commission in Dhaka, Bangladesh. There was no obligation on the Tribunal to require DFAT or the High Commission to make inquiries. Contrary to the applicant's claim the Tribunal did take into account the applicant's statement of events, which it not only set out in its reasons but also addressed in the findings and reasons part of the decision. Contrary to the applicant’s contention it also took into account his claim of connection with the Bangladesh Awami League in its acceptance of his claim to be a member of the Bangladesh Chattra League.
The applicant contended that the Tribunal erred in law in failing to consider his subjective state of mind. It appears that this is a contention that the Tribunal failed to address the subjective element of whether or not the applicant had a well-founded fear of persecution. However, the Tribunal found that there was no real chance that the applicant would be persecuted for political opinion, that is there was no objective basis for his fear. In such circumstances it was not required to make an express finding as to any subjective fear.
It was also claimed that there was no need to be high profile or low profile political involvement. It seems from the applicant's written submissions that this claim takes issue with the independent information relied upon by the Tribunal in relation to the circumstances in which the Bangladeshi authorities have shown an adverse interest in the opposition. Insofar as that is the contention, the findings of the Tribunal in that respect were open to it on the information before it for the reasons that it gave. The weight to be given the particular items of country information was a matter for the Tribunal. The applicant's disagreement with the Tribunal's conclusions in that regard takes impermissible issue with the merits of the Tribunal decision. The Tribunal did find that the applicant was not engaged in political activities at a level that gave him a significant political profile in Bangladesh, but did not, from this conclusion, simply go on to find that he was not at risk of persecution as contended. Rather it addressed each aspect of his claim, having regard to his particular circumstances, what had happened to him and what he had done in the past and on the basis of this and independent information found that he did not have a well-founded fear of persecution. No jurisdictional error is established in the manner in which it carried out this task.
The final part of the written submission takes issue with the merits of the Tribunal decision. Contrary to the applicant’s contention the Tribunal accepted that the applicant was a member of a political party. It has not been established that it failed to accord procedural fairness or comply with section 424A(1). Insofar as this repeats the claim that the applicant was not given the opportunity to respond to adverse information, I have already considered the operation of section 424A(3) and the absence of an evidentiary basis for such a claim if expressed in terms of natural justice.
Finally, the applicant made a number of oral submissions, which he reiterated after the respondent had addressed his submissions. Insofar as he seeks merits review, merits review is not available in this Court. It is not for the Court to determine whether the applicant is a refugee. The applicant sought to rely on a recent incident which occurred after the Tribunal reasons for decision. Such incident did not affect the legality of the Tribunal decision, the Tribunal not being aware of the incident. The Tribunal had to decide at the time of its decision whether the applicant met the definition of refugee. The applicant's view of the current circumstances in Bangladesh does not establish a jurisdictional error on the part of the Tribunal.
The applicant complained specifically that the Tribunal accepted that he would be harmed in his local area but found that he could relocate but in so doing did not consider the fact that Bangladesh is a small country. There are a number of problems with this contention. First, the Tribunal did not find that the applicant would be harmed in his local area. On the contrary, it was not satisfied that he had a well-founded fear of persecution for reason of his political opinion. However it indicated that if he remained fearful of political violence in his local area it was reasonable for him to relocate to a different part of Bangladesh. In considering relocation it addressed a number of issues. It did not refer expressly to the size of Bangladesh in the findings and reasons part of the decision, albeit it this was a matter raised by the applicant (according to the Tribunal account of what occurred in the hearing) when the question of relocation was put to the applicant. However, this is not a situation where the Tribunal failed to address an element or integer of the claim or misapplied the test in relation to relocation. Rather it had this evidence before it but clearly preferred other evidence. It addressed the claim about the size of Bangladesh. This is apparent from its reference to the population of Bangladesh, (130 million people) and to the fact that there are 64 districts in Bangladesh and in its statement that it did not accept that the applicant would be found by his old political opponents anywhere in a densely populated country like Bangladesh. Reading the Tribunal's reasons for decision fairly and as a whole, it is apparent that the Tribunal was aware of and addressed of the applicant's concern about the size of Bangladesh but that it was persuaded by other circumstances to which it made express reference in considering relocation. It gave consideration to the practical realities facing the applicant should he seek to relocate as required by Randhawa. It addressed the geographic issues and impediments raised by the applicant, his personal characteristics and the fact that, contrary to his claim that it would be easy to get information about him, there was no evidence that any of his opponents had made any effort to find him in Dhaka where he essentially lived and worked from 1996.
The applicant also took issue with the Tribunal's findings in relation to the Sarbahara party, suggesting that it found that the Sarbhara was in a confined part of Bangladesh, and that it was not. However it is apparent from the Tribunal's reasons for decision that what it considered were the actions of the applicant insofar as he claimed to have been affected by the Sabahara. All such actions had taken place in his local area. The Tribunal found that his activities were limited in scope and confined to his village. It did not err in the manner contended. In considering the threats that the applicant claimed to have received in 1995, it noted that the applicant had travelled to and from Dhaka and his home village, and that the Sarbahara had the opportunity to act on such threats but had not done so. No jurisdictional error is established in the manner in which the Tribunal considered the applicant's claims in relation to a fear of harm by Sabahara.
The applicant's general claim that the Tribunal did not take into account the political violence in Bangladesh or that it knew about it but did not give it proper consideration, does not establish a jurisdictional error. It is apparent from the Tribunal's reasons for decision that the Tribunal did consider independent country information in relation to political violence in Bangladesh. Its findings in that regard, not only that the mere fact of political violence did not necessarily mean there was persecution, but also the specific findings in relation to the applicant's risk of harm if he returned to engaging in political activity as he had in the past, were open to the Tribunal on the material before it. As I have indicated, the applicant's concerns about the present situation in Bangladesh do not establish that the Tribunal made a jurisdictional error at the time of its decision and based on the information before it at that time.
As no jurisdictional error has been established, the application must be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 30 March 2005
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