SZCHB v Minister for Immigration
[2006] FMCA 395
•9 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCHB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 395 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Bangladesh who claims a fear of persecution by fanatical Muslims because of being a non-believer - credibility. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.424, 424A
Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288
SZDJQ v Minister for Immigration [2005] FMCA 415
Thuraisamy v Minister for Immigration and Multicultural Affairs (1999) FCA 1632
WACO v Minister for Immigration and Multicultural Affairs (2003) 131 FCR 511
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 660
Moradian v Minister for Immigration and Multicultural Affairs (2004) 142 FCR 170
Minister for Immigration and Multicultural and Indigenous Affairsv Katisat [2005] FCA 1908
Minister for Immigration and Ethnic Affairsv Guo (1997) 191 CLR 559
Commissioner for ACT Revenue v Alphaone Pty Limited (1994) 49 FCR 576 MZBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94
Applicant M189 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 131
SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 24
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 124 ALR 265
| Applicant: | SZCHB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 2867 of 2003 |
| Delivered on: | 9 March 2006 |
| Delivered at: | Sydney |
| Hearing date: | 8 March 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Zipser |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal is joined as Second Respondent to the Application.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the amount of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2867 of 2003
| SZCHB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 10th November 2003. The Tribunal handed down its decision on 3rd December 2003.
The decision of the Tribunal was to confirm a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa to the Applicant.
Background
The Applicant is a citizen of Bangladesh who arrived in Australia on 29th March 2003. He applied for a protection (class XA) visa on
16th April 2003 but it was refused on 30th May 2003. On 22nd June 2003 the Applicant applied to the Refugee Review Tribunal for a review of that decision.
The Applicant attended a hearing of the Tribunal on 7th November 2003 and gave evidence of having been born into a conservative Muslim family but was himself opposed to religious fanaticism.
He worked as a cook until he became an actor in 2002. He became a member of social organisations who wished to make a secular-oriented Bangladesh. This activity brought him to the attention of the Islamic Chatra Sibir, the student wing of the Jamat-e-Islami. He claimed to have been attacked and beaten in 1995 and 1999 when he was even stabbed by his attackers.
He continued taking part in demonstrations until 9th October 2001 when his house was ransacked and his brother beaten by six or seven armed men. He claimed that the police brought false charges against him after he had taken part in a demonstration. The Applicant's advisor made further submissions on his behalf on 5th and 6th November 2003.
The Tribunal’s findings and reasons
The Tribunal accepted that the Applicant was a citizen of Bangladesh. The Tribunal accepted that serious charges had been brought against the Applicant by the police for "throwing bombs." After considering Independent Country Information the Tribunal was satisfied that:
a)there was not a real chance that the Applicant would experience serious harm amounting to persecution for a Convention reason if he returned to Bangladesh, and
b)The courts in Bangladesh are independent and could be relied upon to protect those who are falsely charged.
The Tribunal accepted Independent Country Information which it set out at pages 108 and 109 of the Court Book and accepted that information over the claims made by the Applicant. The Tribunal said, at page 109:
Accordingly the Tribunal is satisfied that even if legal action is taken against him over property rights, human rights or indeed the claimed false charges, the Applicant could appeal to the courts for independent consideration of his entitlements and legal protection and so finds that there is not a real chance that he will be subjected to serious harm amounting to persecution for a Convention reason on this basis.
The Tribunal went on to accept Independent Country Information about the fact that atheism, as it is known in Australia, is not known in Bangladesh. The Tribunal was satisfied that even though the Applicant claimed to have spoken out publicly against Islam and religion since his youth, the Tribunal was not satisfied that his views on the subject were known outside a small circle.
The Tribunal went on to consider whether it would be reasonable for him, the Applicant, to live elsewhere in Bangladesh; a country of more than 138 million people. The Applicant claimed that it would be difficult for him as he would be seen as a new face and he would be investigated and no place is outside the influence of the Chatra Sibir or the Jamat-e-Islami. He said that he had tried to live in other places including Chula and Chittagong but could not remain there and said that he had stayed a few days in Chula but the fundamentalists got to know about it and insisted that he attend a meeting and threatened to report him to the police. The Tribunal made it clear, at page 110 of the Court Book, that the Tribunal did not accept those claims.
The Tribunal was not able to satisfy itself that the Applicant would be at risk of serious harm amounting to persecution because of his views on Islam, being a non-believer, or for any other reason, if he were to live elsewhere in Bangladesh, even given that photographs of him had appeared in the media more than a year prior to the hearing.
The Tribunal was satisfied that if the Applicant chose to live elsewhere in Bangladesh, even if he were to continue to espouse his views on Islam and it became known that he was a non-believer, that there was not a real chance that the Applicant would be subjected to serious harm amounting to persecution for a Convention reason.
The Tribunal noted the Applicant's advisor's submissions as to the effect that Islamic law denies basic human rights amounting to persecution and that he would face serious harm amounting to persecution if he were to return to Bangladesh. The Tribunal was not satisfied in respect of those submissions, even though the Tribunal accepted that there are some ongoing security and human rights difficulties in Bangladesh.
In short, the Tribunal was satisfied there was not a real chance that the Applicant would be subjected to serious amounting to persecution for a Convention reason if he returned to Bangladesh at that time or in the foreseeable future and affirmed the decision not to grant a protection visa.
The application for judicial review
The Applicant sought a review of that decision from this Court under s.39B of the Judiciary Act. The Applicant filed an Amended Application and a Further Amended Application was filed in Court on 8th March 2006. There was no objection by the counsel for the Respondent Minister.
The Applicant, in his Further Amended Application, sets out two grounds:
(1) The Applicant claimed that he "led many demonstrations against anti-liberation forces and on 9 October 2001 his house was ransacked and his brother was beaten." The Tribunal dealt with this claim by finding that the fact that the Applicant returned to Bangladesh from India in October 2002 meant that he did not have a well-founded fear of persecution at the time. The Tribunal fell into jurisdictional error in the above reasoning process.
(2)The Tribunal accepted " that serious charges had been made against the Applicant for throwing bombs," but found that the courts are independent in Bangladesh and in the circumstances the Applicant did not have a well-founded fear of persecution on the basis of the charges. However the Tribunal ignored or overlooked the existence of corruption in the Lower Courts and the effect that this may have on whether the Applicant had a well-founded fear of persecution. On this basis the Tribunal fell into jurisdictional error.
The Applicant filed Written Submissions in respect of the two issues, the first of which his counsel, Mr Zipser, described as the house attack issue. The submission referred to the events of 9th October 2001, where a named person and six or seven armed young men, entered the Applicant's residence, called out his name and shouted with abusive and rough language; they referred to him as a non-Muslim and a Kafir and threatened to kill him.
The Tribunal did not reject the Applicant's claim that this event occurred. The Tribunal accepted that the Applicant chose to return to Bangladesh on 18th October 2002 and was satisfied that he would not have done so if, because of his past experiences or for any other reason, he had a well-founded fear of serious harm amounting to persecution for a Convention reason.
The applicant’s submissions
The Applicant's submission sets out three complaints about the reasoning process. First, the Tribunal did not reject the Applicant's claim that the October 2001 house attack occurred. Instead the Tribunal found that the fact that the Applicant had returned from India to Bangladesh in October 2002 meant that he did not have a genuine fear of persecution at the time. The complaint is that the relevant question for the Tribunal is not whether the Applicant had a genuine fear of persecution in October 2002, but whether the Applicant had a genuine fear of persecution at the time of the Tribunal's decision in November 2003.
The Applicant referred to Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288. The Applicant submits that in circumstances where a number of events had occurred to the Applicant between October 2002 and November 2003, i.e. the date of the hearing, the Applicant may have had a genuine fear of persecution in November 2003, even if he did not have a genuine fear of persecution in October 2002. I am referred to SZDJQ v The Minister for Immigration [2005] FMCA 415 at [29].
The second complaint as to the house attack issue is that the Tribunal did not put to the Applicant its concern that his return to Bangladesh in October 2002 suggested he did not have a genuine fear of persecution. If the Tribunal had put this matter to the Applicant he may have been able to explain the matter. The mere fact that an applicant returns to a country in relation to which they subsequently claim a fear of persecution for Convention reason does not mean that they did not have a genuine fear of persecution at the time of their return.
The Applicant refers the Court to the decision of Thuraisamy v Minister for Immigration and Multicultural Affairs (1999) FCA 1632. The Applicant submits that subject to the operation of s.422B of the Migration Act the Tribunal's failure to put its concern to the Applicant involved a denial of procedural fairness. I am referred to WACO v Minister for Immigration and Multicultural Affairs (2003) 131 FCR 511, either under the common law or implied by s.425 of the Migration Act. (See NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 660 at [27]).
In relation to the operation of s.422B the Applicant relies on cases supporting a narrower construction of that section including Moradian v Minister for Immigration and Multicultural Affairs (2004) 142 FCR 170 but accepts that the more recent Federal Court decisions have preferred the broader construction proposed by the Minister, although the matter has not been authoritatively decided, he referred to Minister for Immigration and Multicultural and Indigenous Affairsv Katisat [2005] FCA 1908 at [49].
The third complaint refers to the decision of Minister for Immigration and Ethnic Affairsv Guo (1997) 191 CLR 559 where the High Court said:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many if not most cases determining what is likely to occur in the future will require findings as to what has occurred in the past, because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.
The Applicant submits that he claimed that the October 2001 house attack occurred but the Tribunal did not make a finding as to whether the attack actually occurred and the Tribunal's failure to form a conclusion concerning past events contravened the principles stated in Guo.
In oral submissions counsel for the Applicant referred to the question of illogicality or irrationality in the Tribunal's reasoning process and specifically referred to the decision of Thuraisamy in paragraph 10. That reference to paragraph 10 says as follows:
Finally it is said the Tribunal erred in relying on the decision of Heerey J in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 - to the effect that it is legitimate in assessing the genuineness, or at least the depth, of an applicant's claim to fear of persecution to take into account any delay by the applicant in lodging an application for a protection visa. The Tribunal member commented,
"In the present case the Applicant's delay in seeking Australia's protection, coupled with the fact that he has left and returned to Sri Lanka on three occasions after the events which he claims gave rise to his fear of being persecuted, leads me to conclude that he does not have a genuine fear of being persecuted if he returns to Sri Lanka now or in the foreseeable future."
We see nothing wrong with this statement. Of course the existence of delay does not end the enquiry. There may be a good reason for the delay notwithstanding genuine and deep fears for persecution. In this case the Tribunal did not suggest otherwise. We do not think the Tribunal misunderstood or misused the decision of Heerey J.
Counsel for the Applicant relies on that paragraph in particular to make the proposition that the very fact that the Applicant returned to Bangladesh did not end the enquiry or should not have done so because as in the case of delay, there may well be an explanation for delay. It is not, he submits, a case where a return to a place where a person claims to have suffered from actions which give rise to a fear of persecution ends the enquiry as to whether the person has a subjective fear of persecution at the time of the hearing because there may well be an explanation.
The first respondent’s submissions
The First Respondent has filed a Written Outline of Submissions and replies to the Submissions in respect of the first ground, the house attack ground. He describes the ground as having three parts and describes them in the following way:
i)An error of law in failing to assess the applicant's fear at the time of the decision rather than at some earlier time;
ii)A denial of procedural fairness;
iii)A failure to make a finding as to a past event.
Counsel for the Respondent found that the Tribunal did not find that the Applicant had no subjective fear upon return from India to Bangladesh on 18th October 2002 but rather, found that there was no well-founded fear of persecution arising out of his past experiences or for any other reason. He submits, therefore, that the first part of this ground is based on a false premise and ought to be rejected.
In considering this ground it appears to me that there is a difference between the approaches of counsel for the Applicant and the First Respondent in that the Applicant submits that there was a finding of no fear or no well-founded fear of persecution because of the return to Bangladesh; whereas counsel for the First Respondent Minister, submits that the fact of a return to Bangladesh is not put as a factor that negates there being a well-founded fear of persecution but as a piece of evidence upon which the Tribunal was entitled to rely in deciding whether or not there was a well-founded fear of persecution at the time of the hearing.
In my view, that latter proposition is correct. It is a piece of evidence and it is up to the Tribunal to give that piece of evidence the weight that the Tribunal, as the administrative decision maker, considers to be appropriate. True it is that a finding that someone return to a place where the complained of having suffered violence before is not a definitive reason for finding that the person does not have a well-founded fear of persecution. It is a matter to be taken into account and assessed. What weight the Tribunal gives it is, in my view, a matter for the Tribunal.
The first basis, therefore, that ground, in my view, fails.
Turning to the second basis for the first ground, i.e. the house attack ground, the Tribunal not putting to the Applicant its concern over the return to Bangladesh in October 2002, I note that a transcript of the hearing was submitted on behalf of the Applicant in support of the contention that the Tribunal did not, in fact, put that specific concern to the applicant.
Counsel for the First Respondent did not object to the tender of the transcript and I am satisfied from the transcript that the Applicant's claim that the Tribunal did not put to him its concern about that return to Bangladesh is, in fact, well-founded, i.e. that it is a fact that the Tribunal did not raise that point with the Applicant.
What counsel for the Respondent submits is that the Tribunal did not have to. The Tribunal at common law was not obliged to reveal its thought processes to the applicant and that, counsel submits, is what that concern was: the Tribunal's thought processes. If the Tribunal were required to put those thought processes to the Applicant, that would be contrary to authorities such as Commissioner for ACT Revenue v Alphaone Pty Limited (1994) 49 FCR 576, also MZBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 and also Applicant M189 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 131.
Counsel for the Respondent also submits that it is not correct to say that there is no authority to the decision to the effect that there is no scope for the operation of procedural fairness outside the requirements of s.424A of the Migration Act. He says that issue was determined on appeal from this Court in SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 at [18]. That is, to my mind, a correct statement of law.
There is not an obligation under s.424A for the Tribunal to reveal its thought processes. (See VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 24 and also SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [206] per Allsop J).
Conclusion
In relation to s.422B, I note that counsel for the Applicant prefers the narrower construction of that section as set out in such cases as Moradian v MIMA. It appears to me that decisions of the Full Court of the Federal Court on appeal from this Court have preferred the broader view and I note that Minister for Immigration and Multicultural Affairs v Katisat, to which I have previously referred, to my mind, takes a less ambiguous view about the appropriateness of the Moradian approach than counsel for the Applicant submits.
The decision in Katisat is, in fact, a decision on an appeal from one of my own decisions and I am satisfied from the decision in Katisat, that the narrower approach set out in Moradian is not the approach that finds favour with the Full Court of the Federal Court and quite clearly, the broader view - and I believe that Katisat does prefer the broader view - is the approach that this Court is bound to follow. Decisions of the Full Court of the Federal Court on appeals from this Court, whether by a single Judge or by a Full Court of three, are of course, binding on this Court.
The third point is the Minister for Immigration and Ethnic Affairs v Guo point. Counsel for the Respondent submitted that the Tribunal made a finding that the Applicant's past experiences did not give rise to a well-founded fear of persecution. That finding, he submits, deals with the possibility that the house attacks did occur and so there was no obligation to deal separately with that claim by making express findings. He refers to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 91.
The other issue that arises in respect of the house attack claim is a point that counsel for the Applicant made in oral submissions during hearing which I indicated I did not support during the hearing. I will, however, cover briefly those issues now and indicate that I maintain my view that the claim should not succeed.
Counsel for the Applicant raised a s.424A point in respect of the house attack claim on the basis that whilst there was information given by the Applicant as to what the applicant said happened on 9th October 2001, that the Tribunal had modified that information so that it became, in effect, a separate piece of information which should therefore have been disclosed to the Applicant in writing. I indicated at the hearing my view that that was not correct and took the view, which I still hold, that the information about 9th October 2001 attack was information but what the Tribunal did with that information was not a modification of that information but a conclusion reached from the application, therefore it did not need to be given to the Applicant in writing. I am satisfied that that view still represents the law.
In my view the house attack claim does not show a jurisdictional error.
I turn to the false charges issue. The Applicant claimed that false charges were laid against him following his involvement in a procession in June 2002. The Tribunal accepted that charges had been laid against the Applicant and found that this did not give rise to a well-founded fear of persecution due to the Independent Country Information of the independence of the Courts in Bangladesh and the fact that people can rely on the Courts.
The Applicant submits that the Independent Country Information indicated that the lower courts in that country were subject to executive influence and suffered from corruption and that the corruption encountered in the judicial process at that level did not prevent people from obtaining a fair trial. The submission goes, at paragraph 22:
It is accepted that the same country information indicates that the higher courts are independent. However, where an applicant may remain in prison for a period of time while corrupt lower courts deal with these charges at first instance, a question is whether this constitutes persecution. The Tribunal failed to deal with this issue giving rise to jurisdictional error.
Counsel for the Respondent Minister submits that jurisdictional error has not been made out, submitting the fact that there was evidence contrary to the Tribunal's conclusion does not mean that it failed to consider the claim. It only means that it could have found the other way. It did not and that ground ought to be rejected.
I raised with counsel for the Applicant at the hearing, my concern that the second ground, the false charges ground, was in effect, a merits review argument rather than an argument as to whether the Tribunal had not considered part of the Applicant's case.
Counsel for the Applicant submitted that whilst the argument was perhaps borderline, that it was on the safe side of the border and not on the merits review side. I indicated my disbelief then and I maintain my view that the argument, whilst ingeniously and eloquently framed, is, in effect, a merits review claim which is impermissible in a Court conducting judicial review and the ground therefore should be rejected.
Whilst there was no specific argument about the relocation issue - and the reasonableness of relocation is, of course, a matter that was discussed in such cases as Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 124 ALR 265 - I note that the Tribunal did consider the situation that if the Applicant had a well-founded fear of persecution or a subjective fear of persecution for that matter in Dhaka, the capital of Bangladesh and Bangladesh was a country of 138 million people and it would be reasonable for him to relocate elsewhere in Bangladesh.
The Applicant told the Tribunal that it was not, and gave reasons but the Tribunal formed the view that the Applicant was not widely known and that it would therefore, be reasonable for him to carry out his profession and make a living and even continue with his activities in another part of Bangladesh.
In my view, the question of relocation was appropriately considered by the Tribunal, albeit in the alternative, and I am of the view that no jurisdictional error was demonstrated in that consideration.
In short, dealing with the two grounds raised by the Applicant, including the three reasons given in the Applicant's Submissions and the matters raised in oral argument by counsel for the Applicant yesterday, I am satisfied that no jurisdictional error has been demonstrated.
It must follow, therefore, that the decision is a privative clause decision and the application should be dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 22 March 2006
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