SZCKD v Minister for Immigration
[2005] FMCA 1896
•13 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCKD v MINISTER FOR IMMIGRATION | [2005] FMCA 1896 |
| MIGRATION – Review of decision of RRT – whether Tribunal used wrong test in assessing applicant’s claims of future persecution. |
| Federal Magistrates Court Rules 2001 |
| Chan v Minister for Immigration (1989) 169 CLR 379 Minister for Immigration v Guo (1997) 191 CLR 559 SGKB v Minister for Immigration [2003] FCAFC 44 Puerta v Minister for Immigration [2001] FCA 301 NABB of 2002 v Minister for Immigration [2002] FCAFC 225 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZCKD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG34 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 13 December 2005 |
| Date of Last Submission: | 13 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Slattery |
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG34 of 2004
| SZCKD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh. He arrived in Australia on 3 February 2002. On 11 March 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 31 July 2003 a delegate of the Minister refused to grant the protection visa and on 12 August 2003 the applicant applied for review of that decision.
The applicant was invited to and attended a hearing before the Tribunal which determined to affirm the decision not to grant a protection visa on 24 November 2003 and handed down that decision on 18 December 2003. The applicant filed an application seeking review of the decision of the Tribunal on 6 January 2004. He filed an amended application on 19 April 2004 and on his behalf counsel filed a further amended application in court today.
The importance of this further amended application is that it abandons all arguments originally put forward for judicial review and substitutes in their place an argument that the Tribunal:
“Determined the well-founded fear element of the test for Refugee Status by weighing up the likelihood of persecution on the balance of probabilities.”
Because of this helpful narrowing of the issues it is not necessary for me to go into the detail about the applicant's original claims which were not believed by the Tribunal. What is acknowledged in the Tribunal's findings and reasons is that the applicant is a Hindu in Bangladesh, that there are only 9 per cent of the population who are Hindus in Bangladesh and that:
“There is generalised societal discrimination against Hindus in Bangladesh including access to jobs in Government and the Military [that] Hindus are disadvantaged in achieving political office and [that] religious minorities continue to perceive and experience discrimination from the Muslim majority ... The Tribunal also accepts the independent evidence that Hindus in Bangladesh have been suffering increasing harassment and harm from fundamentalist Muslims and that the new Government has lessened the general level of religious tolerance that has prevailed in Bangladesh. The Tribunal also accepts the independent evidence that the Government has sometimes failed to criticise, investigate and prosecute the perpetrators of attacks on members of religious minorities. However, the Tribunal finds that the evidence before it indicates that these attacks are in general on prominent Hindus or are in the nature of random and non-selective attacks.”
As I understand the submissions from Mr Slattery it is submitted that for the purpose of this case the applicant is to be considered as a Hindu person in Bangladesh and with no other particular qualities that would differentiate him from any other Hindu person.
The Tribunal commences its decision with what Mr Slattery describes as a "boilerplate" definition of refugee. This definition has four parts, the fourth of which discusses the "well-founded fear test". The use of the phrase "real chance" continues throughout the Tribunal's decision. At [CB 451] the Tribunal says:
“The Tribunal further finds that there is no real chance that the applicant would suffer serious harm in what remains isolated, unsystematic and non-selective attacks on Hindus in Bangladesh.
In the circumstances of the applicant's case, the Tribunal is not satisfied by the totality of the evidence before it, that there is a real chance that the applicant would be persecuted now or in the reasonably foreseeable future for any Convention reason if he returned to Bangladesh.”
Mr Slattery submits that if I look carefully at the independent country information found at [CB 445] and [456] I will realise that the Tribunal had before it evidence of real persecution of Hindus within Bangladesh and that when I look at the reasons for the decision at [CB 450] and [451] most of which I have extracted in these reasons, I must come to the conclusion that the Tribunal adopted some kind of balance of probabilities test to decide whether or not the applicant had a real chance of persecution. Mr Slattery argues that cases such as Chan v Minister for Immigration (1989) 169 CLR 379, Minister for Immigration v Guo (1997) 191 CLR 559, SGKB v Minister for Immigration [2003] FCAFC 44, Puerta v Minister for Immigration [2001] FCA 301 all make it clear that the test is not to be conducted on the balance of a probabilities basis, but there must be a finding of a substantial as distinct from a remote chance of persecution occurring.
In this case the Tribunal has, to my mind, assessed the risk on the appropriate "real chance" basis. The views which it expressed would seem to indicate that it believed that insofar as this particular applicant was concerned any chance that he would be persecuted was remote.
That is not the same as saying that it is more likely than not that it would not occur. It is an assessment of the position of the applicant in the totality of his claims and of the evidence of how the limited acts of persecution which are acknowledged would affect him.
In NABB of 2002 v Minister for Immigration [2002] FCAFC 225 the Full Bench was met with an argument very similar to the one put by Mr Slattery today. In that case the Tribunal used the words "real chance" at the commencement of the decision but later on used other words such as:
“The Tribunal is not satisfied that these threats to the applicant's parents would be carried out.”
At [22] the Full Bench said:
“In each case, the words complained of, namely "would be carried out", "would" and "would have" are connected to the Tribunal's absence of satisfaction about whether any possible harm or threat would come to fruition. While the sentences do not state what standard of satisfaction was being applied by the Tribunal, the Tribunal's reasons, as a whole, indicate that it was applying the well-founded fear standard as explained by the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379.”
The court then goes on to note the use of the four elements which I have already described in these reasons and states at [25]:
“There is no justification for concluding that the Tribunal made such an elementary error as is relied upon by the appellant. In circumstances where the Tribunal started and finished by stating the correct "real chance test", the fact it used some phraseology in between that might or might no have suggested a departure from that test is not a warrant for concluding that the Tribunal erred in law.”
The appellant's contentions are, in essence, an invitation to the court to read the Tribunal's reasons "with an eye keenly attuned to error" (see Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 271-2).”
I am of the view that the remarks made by the Full Bench in NABB of 2002 apply equally in this case. Mr Lloyd suggested what I am really being asked to do is to disagree with the Tribunal and that would be an unwarranted and impermissible meddling with the Tribunal's decision on the facts. I think that in reality he is correct. There is simply not enough on the face of the decision to enable me to attempt to delve into the mind of the Tribunal for the purposes of making a finding that it did not apply the test which it so clearly adumbrated and then repeated throughout the grounds and reasons for decision.
In those circumstances I am unable to find any grounds for review of this decision. I dismiss the application and I order that the applicant pay the respondent's costs which I assess in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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