SZCCZ v Minister for Immigration - [2006] FMCA 506

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCCZ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 506

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to ask itself the right question – whether no evidence or whether Tribunal misunderstood its role – whether applicant’s bridging visa remains in effect – whether proper notification of decision of Refugee Review Tribunal.

Migration Act 1958 (Cth), ss.36, 65, 430A, 430B, 441A, 441C

Applicant:

SZCCZ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2695 of 2003

Judgment of:

Barnes FM

Hearing dates:

9 February & 2 March 2006

Delivered at:

Sydney

Delivered on:

7 June 2006

REPRESENTATION

Solicitors for the Applicant:

Parish Patience Solicitors

Counsel for the Respondent:

Mr R. Bromwich

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2695 of 2003

SZCCZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 4 September 2001 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant also seeks a declaration that a Bridging Visa A granted to him at the time of his application for a protection visa remains in effect.
The applicant, who is a citizen of Bangladesh, arrived in Australia in March 1999. In April 1999 he lodged an application for a protection visa. The application was refused and he sought review by the Tribunal. In a statement attached to his protection visa application the applicant (who was born in 1972) claimed that he had been involved in student politics as a member of the student wing of the Bangladesh Nationalist Party (the BNP). He claimed that after a 1987 demonstration a detention order had been taken out against him and that he had to defer his studies…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FMCA 506
Decision Date: 7 June 2006

CaseChat Overview and Summary

The applicant, SZCCZ, appealed a decision of the Refugee Review Tribunal (the Tribunal) which had rejected their application for a Refugee Visa. The Minister for Immigration opposed the application. The Federal Court was tasked with reviewing the Tribunal's decision under sections 36 and 65 of the Migration Act 1958 (Cth). The primary legal issue was whether the Tribunal correctly assessed the applicant's fear of persecution under the Convention definition, specifically whether the Tribunal erred in its application of the "real chance" test for determining a well-founded fear of persecution.

The court found that the Tribunal erred in its interpretation of the "real chance" test as outlined in Chan Yee Kin v Minister for Immigration & Ethnic Affairs. The court clarified that a well-founded fear of persecution does not require a likelihood of persecution, but rather a real chance that the applicant will be persecuted. The Tribunal's focus on the possibility of avoiding harm, rather than the real chance of persecution, misapplied the test. The court held that the Tribunal should have considered whether there was a real chance of persecution occurring despite the possibility of avoiding harm, aligning with the principles established in Chan.

Given the misapplication of the legal test, the court quashed the Tribunal's decision and remitted the matter back to the Tribunal for reconsideration. The court did not substitute its own decision on the merits of the case but directed the Tribunal to properly apply the "real chance" test in its reassessment.

The court's final order was that the application be dismissed, but with the direction that the matter be remitted to the Tribunal for re-evaluation in light of the court's findings on the proper application of the "real chance" test.

Orders

Orders of the court

That the application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Reference was made to the following part of the Tribunal findings and reasons:I accept that the applicant was involved in political campaigning associated with the 1996 elections. However, I am not satisfied that the applicant has a well-founded fear of persecution arising out of his political activities. The independent (evidence) that there is a high level of violence evidence (sic) in Bangladesh politics and that this is a reflection of the fact that there is a very high level of violence within the community generally. However, the applicant’s evidence was that he was never involved in any violent political activities, and was entirely committed to non-violence. I accept that this is the case. In the circumstances, therefore, I do not accept that the applicant ever participated in violent demonstrations or other political activities involving violence. The independent evidence does not suggest that all those who participate in political activities in Bangladesh are engaged in violent activities. The independent evidence before me suggests that while there is a lot of violence in Bangladesh politics, it is quite possible to be involved in political activities without being in violence either as a perpetrator or as a victim. The evidence does not suggest that those involved in non-violent political activities are at risk of being attacked because of those activities. (emphasis added) It was acknowledged that the Tribunal referred to and accepted the applicant’s evidence that he was opposed to political violence and that he did not participate in violent attacks against his political rivals. However the applicant submitted first that the fact that it may be “possible” to avoid being a victim was not the correct test or standard of satisfaction to apply, as the question was not whether it was “possible” to avoid harm but rather whether, notwithstanding that possibility, there was a real chance that the applicant could suffer that harm for a Convention reason. Reliance was placed on what was said in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 429:The decisions in Sivakumaran and Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the U.S. Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his fear should be characterised as “well-founded” for the purpose of the Convention and Protocol. [emphasis added in applicant’s submissions] It was submitted that the state of satisfaction on the part of the Tribunal called for in ss.36 and 65 of the Migration Act 1958 (Cth) (the Act) was in relation to the ultimate question of whether the applicant’s fear of persecution was well-founded, but that the proper test did not require the Tribunal to be “satisfied” that persecution was likely to occur or that it was not “possible” to avoid the harm feared (Chan). Rather, the test upon which the ultimate question rested – whether a fear was well founded – was said to be whether there was a “real chance” (as defined in Chan) that persecution may occur, not whether it was possible that it will occur. Further it was pointed out that, as Chan established, a fear of persecution may be well founded even though the chance of it occurring was very slim and even though it may be “unlikely to occur”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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