SZCLV v Minister for Immigration - [2004] FMCA 553

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCLV & ORS v MINISTER FOR IMMIGRATION & ANOR

[2004] FMCA 553

MIGRATION – Protection visa – Christian Bangladeshi – claim that all Christians risk persecution – Tribunal made no error when rejecting.

Migration Act 1958 (Cth), ss.423, 423(1), 474(1), 474(2), 483A, Parts 7 & 8
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth), s.39B

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Sellamuthu v Minister for Immigration (1999) 90 FCR 287
Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1234
WAEE v Minister for Immigration (2004) 75 ALD 630
WAFD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 257
X v Minister for Immigration (2002) 116 FCR 319

Applicants:

SZCLV, SZCLW & SZCLX

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG 89 of 2004

Delivered on:

8 September 2004

Delivered at:

Sydney

Hearing date:

25 August 2004

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicants:

Mr Leonard Karp

Solicitors for the Applicants:

Parish Patience Immigration

Counsel for the First Respondent:

Mr Geoffrey Kennett

Solicitors for the First Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicants to pay the respondents’ costs as agreed or assessed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 89 of 2004

SZCLV, SZCLW & SZCLX

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application to this Court invoking its jurisdiction under s.483A of the Migration Act 1958 (Cth) seeking to set aside a decision handed down by the Refugee Review Tribunal which upheld the refusal of protection visas to the first and second applicants and a secondary visa to the third applicant.
Section 483A gives the Court ‘the same jurisdiction as the Federal Court in relation to a matter arising under this Act’. The jurisdiction of the Federal Court in relation to such matters is its general judicial review jurisdiction conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth) and by s.39B of the Judiciary Act 1903 (Cth) but subject to added limitations under Part 8 of the Migration Act.
A judicial review jurisdiction can provide a remedy to a person aggrieved only where a legal defect can be identified in the administrative action under challenge, and it is axiomatic that it does not extend to correcting an error which is merely an error of fact or of judgment on the merits.
Significant limitations on the Federal Court’s general judicial review jurisdiction are imposed by Part 8 of the Migration Act on applications to the court which are ‘in respect of a privative clause decision’ as defined in s.474(2). For such applications, which include applications for review of decisions of the Refugee Review Tribunal, the simple language of s.474(1) appears to prevent the Court from giving any remedy for a defect of any kind. The simple language is subject to implied Constitutional qualifications, but these still leave the Court with reduced power to intervene in relation to a Tribunal decision which answers the definition of ‘a privative clause decision’.
I need not address the Constitutional qualifications further in this case, since the present applicants have presented their challenge on the basis that they must establish that the decision of the RRT is not a ‘privative clause decision’ according to the interpretation of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 and subsequent cases. In those cases the High Court held that limitations under Part 8 of the Migration Act on generally available judicial review remedies do not apply to a challenge to a decision which is in law a nullity because it was vitiated by jurisdictional error. In such a case, where there has been an actual or constructive failure to exercise a power of decision governed by provisions of the Migration Act, this Court can declare void or quash or set aside a purported but legally ineffective decision, and can order that the decision-maker perform or complete its duty to determine the case according to law.
The applicants in their original application to the Court identified three grounds of review and alleged that any one of them would establish a constructive failure by the Tribunal to exercise its jurisdiction under the Act to decide their appeals from the refusal of visas. I need not set these out since they were all withdrawn, and an amended application filed on 19 August 2004 identified only one ground in the following terms: ‘the Tribunal committed jurisdictional error of law by failing to have regard to information that it was obliged to consider pursuant to s.423 of the Migration Act’.
The factual background necessary to understand this ground is sufficiently taken from the applicants’ outline of submissions.
1.The applicants are a family of Bangladeshi Christians. The first applicant is a pastor of the Church of Bangladesh, the second applicant is his spouse and the third applicant is their child.
2.They lodged an application for Protection Visas on 28 September 2004 (CB 1ff). The first applicant had arrived in Australia to attend a Biblical Studies course in Newcastle in July 1997 (CB 34). He returned to Bangladesh twice, firstly at the end of 1997 (D 138), and then for some months at the end of 1998 (RD 86). The second and third applicants joined him at the end of November 1999.
3.In their protection visa application the applicants claimed to fear persecution for reason of their religion, and more specifically because of threats of extortion that were made against their family in Bangladesh, allegedly because of their religion (CB 18-20, 31-33). No more specific claims were made before the application was rejected on 26 June 2002 (CB 61-70). Their application to the Refugee Review Tribunal was lodged on 18 July 2002.
4.Thereafter many letters and statements were received by the Tribunal. Those from the first applicant (CB 84-85) and the second applicant (CB 137ff), allege that they were the persistent victims of extortion threats in their home town of Kushtia, and in Dhaka to where the family said that they fled, at the hands of Muslim gangs. They attributed this unwelcome attention at least partly to their Christianity.
5.On a more general level, a letter from a minister of the Church of Bangladesh claimed that, “… we the minorities in Bangladesh are living in great distress (CB 90-1)”. The first applicant’s father states, inter alia, “Christians are being subjected to terrible oppression in recent times (CB 94)”. Two documents at CB 101-2 alleged victimisation of minority communities by Moslem thugs. A submission by the applicants’ solicitor, Mr Bitel dated 5 August 2003, asserts in part that, “… the elections of October 2001, for example, unleashed an unprecedented wave of violence aimed at religious minorities in Bangladesh (CB 113)”. Attached to that submission were numerous documents, many of which will be in evidence before the Court, although not in the Court Book.
It is clear from the material before the Court that the proceedings before the Tribunal were dominated by an investigation into the factual basis for the applicants’ claims that their personal experiences in Bangladesh revealed a past history of persecution for a Convention reason and that these established a ‘well-founded fear of being persecuted for reasons of … religion’. The Tribunal’s reasons examine at considerable length the accounts given by the applicant husband and wife about events prior to their coming to Australia, and explore numerous inconsistencies between various versions each had given, between their respective accounts and between accounts provided by a third person. As I read the Tribunal’s reasons, its critical finding which provided the principal reason why it held against the applicants is its finding:
However, the Tribunal is confidently of the view that the Applicants have completely fabricated the specific danger they claimed to be dealing with in Bangladesh, whether one refers to the alleged source as the Kushtia gang, or its friends in Dhaka, or the “terrorists”, or the “fundamentalists”, or the “fanatics”, or whatever.
It then explains how it arrived at this finding. No argument was attempted that its reasoning in this respect was not open to the Tribunal.
The applicants’ argument before me concerned how the Tribunal dealt with a claim that, independently of the veracity of their claims to have suffered specific past acts of persecution, they had a more general basis for satisfying the Convention definition. This was that they were at risk of persecution on return to Bangladesh by reason only that they would be Christians in a predominantly Muslim population and that by reason of their religion they would encounter acts of persecution from Muslim extremists for which the State authorities would be responsible or would fail to afford protection. This claim was argued to have been made in their application for review by the Tribunal where they stated:
I dispute the findings of DIMA and say that as Christians we face real persecution in Bangladesh. Especially since election of current government last October. See evidence submitted and to be produced to the tribunal after file is released pursuant to FOI request.
More significantly, it was argued that their alternative general claim was articulated by their solicitor in a lengthy written submission which was forwarded by their solicitor on 5 August 2003 accompanied by bulky supporting evidence. In this submission it was argued:
One must look at the general state of affairs in Bangladesh in order to understand the significance of an applicant’s claims when assessing that person’s application for refugee status. This is especially the case when a person applies for refugee status on the ground that he or she has a well-founded fear of persecution for reason of religion. The prevailing intolerance and resulting treatment of a predominantly Muslim society to other minority religions is an indicator of how other persons who transgress accepted norms and mores will be persecuted.
There has been a history of communal and religious violence in Bangladesh since the partition of India in 1949; recent examples of major communal riots directed at the Hindu minority are provided in the documentation referred to in this submission. The Christian population and other minority populations, is falling as a percentage of the total population of the country which is indicative of their flight from the country due to the fears felt by such minorities there. The political climate in Bangladesh remains unstable. As a result of its victory in the 2001 election, the BNP is now the ruling power in Bangladesh in coalition with the two major Islamic parties. Violence is a continuing part of politics, including political campaigns. The USA Department of State has found that although the higher levels of the judiciary exercise a degree of independence, corruption is rife among the lower judicial officers. The Official Secrets Act of 1923 can protect corrupt government officials from public scrutiny, hindering the transparency and accountability of the Government at all levels. The police and paramilitary forces are controlled by the Home Affairs Ministry and are used for political purposes. They regularly enforce their authority through unprecedented levels of violence and are said to be widely corrupt. Reports evidence their commitment of numerous serious human rights abuses and the lack of redress available to victims in such instances.²
As detailed by the applicant, his wife and his younger brother during the course of the hearing and in their written statements, Christians are a maligned religious minority in Bangladesh. This means that as practicing Christians they are marked as “outsiders” and they suffer taunts, abuse, violence and discrimination on a daily basis. Consequently living in a general state of fear is a part of daily life of this minority group.
Of course the level of persecution and fear fluctuates – the elections of October 2001, for example, unleashed an unprecedented wave of violence aimed at religious minorities in Bangladesh. However, generally, in a country where the Christian minority constitutes no more than 1 percent of the total population and where the government in power aligns with, or is perceived to align itself with, the perpetrators of such persecutory behaviour, the members of this Christian minority group have no recourse to protection against such treatment. This is evident from the description of the abuse meted out to the applicant prior to his departure for Australia and, subsequently, to his wife and daughter.
²See, for example, USA State Department Report on Bangladesh at >
Before me, counsel for the applicants contended that the above submission raised a substantial assertion of an increasing ‘trend’ of harassment of Christians in Bangladesh such that all Christians with background such as the applicants now face a risk of persecution if they are present anywhere in Bangladesh. I was taken to many parts in the bundle of material which was attached to that submission which contained references to various incidents of harassment of Christians over many years up to and including 2003 and which also contained opinions which might support a view that there was a ‘trend’ for the worse and a general risk of persecution.
Counsel for the applicants submitted that the Tribunal had a duty to consider this generally based claim for refugee status and to do so by considering all the material which their solicitor had submitted in support even though it reached the Tribunal after its hearing. It was submitted that this duty is implicit in the procedure allowed by s.423(1) of the Migration Act, which provides:
(1)An applicant for review by the Tribunal may give the Registrar:
(a)a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and
(b)written arguments relating to the issues arising in relation to the decision under review.
It was also submitted that the duty arose from the principle identified in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30 and 44 that ‘an administrative decision-maker must take account of material received right up to the time that the decision is made’ (citing X v Minister for Immigration (2002) 116 FCR 319 at 324-5, also Sellamuthu v Minister for Immigration (1999) 90 FCR 287 at 292, and Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1234 at [25-26]).
I have no difficulty accepting that the above principle is applicable to the present proceedings and to the material submitted on 5 August 2003, whether by implication from s.423 or from the general nature of the proceedings as revealed in the scheme of Part 7 of the Migration Act. I did not understand counsel for the respondent to submit otherwise.
Counsel for the applicants further submitted that a failure to consider evidence pointing to a present ‘trend’ of persecution of Christians in Bangladesh would also amount to a jurisdictional error. He cited the opinion of Moore J in X v Minister for Immigration (supra) at [52] where his Honour found that the Tribunal had ‘ignored relevant material’ and said, ‘Having regard to what is comprehended by the notion of jurisdictional error as discussed by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351-352 [82]-[85]; 180 ALR 1 at 21-22 [82]-[85] the Tribunal’s error was jurisdictional’. In view of my reasoning below, I do not need to examine this contention further nor to address the responses to it of counsel for the respondent.
The essential difficulty facing the applicants’ argument is that the Tribunal states in its reasons that it did address their alternative claim asserting refugee status based on evidence suggesting a current threat of general persecution of Christians in Bangladesh. Counsel conceded that the Tribunal said that it addressed this issue and that it claimed to have considered all relevant material submitted by the applicants. In particular, it did so when it concluded:
The Tribunal considered all the independent material, including the documents provided either by or through the Applicants’ adviser. However, the Tribunal finds that, contrary to the Applicants’ claims, just being a Christian or a Christian pastor in Bangladesh, or the relative of one, does not lead of itself to a real chance of persecution there, even with Islamists in the ruling coalition.
There are also earlier references in the Tribunal’s reasons showing that it considered material bearing on the general situation of Christians in Bangladesh including the material submitted by the applicants’ submission of 5 August 2003. Thus, in its narration of the course of its hearing and consideration it states:
The Applicants lodged post-hearing submissions. The last is dated 5 August 2003. It comprises written statements from the Applicant husband’s brother and the Applicant wife, along with statements from church colleagues and reports from the US Department of State, and other sources, many of which the Tribunal has accessed independently.
In an earlier part of its ‘findings and reasons’ it refers to evidence of ‘independent evidence of actual, individual instances, in recent years, of assault, extortion, vandalism and murder’.
As counsel for the respondents pointed out, the material on the general situation of Christians in Bangladesh was by no means all in favour of the claim of general persecution submitted by the applicants’ solicitors. Thus, a US Department of State report up-dated in March 2003 to which the Tribunal referred suggested a more complex and ambivalent picture under the heading of ‘Abuses of Religious Freedom’:
Local gang leaders sometimes attack religious minorities, perceiving them to be weak and vulnerable. The law and order situation has deteriorated after the October 2001 national elections, and reports from the media, the main opposition party, and some NGOs have alleged that religious minorities have been targeted for attacks. In December 2001, Amnesty International issued a report claiming that Hindus and other religious minorities were attacked since the general election, allegedly by supporters of the Bangladesh Nationalist Party (BNP) led coalition, and the Government had done little to investigate these reports. However, many such reports have not been verified independently. The BNP acknowledged reports of atrocities committed between Muslims and Hindus during the period covered by this report; however, the BNP claimed that they were exaggerated. The Home Minister was unable to confirm reports that Hindus had fled the country and insisted that there was no link between religion and the violence. He also dismissed allegations that the BNP was linked to the perpetrators. The Government decided to set up a special Secretaries’ Committee to investigate the harassment of Hindus.
Ultimately, counsel for the applicants sought to persuade me to conclude that despite the Tribunal saying that it had considered all the material in support of the general claim it did not really do so in the sense of ‘really’ or ‘genuinely’ or ‘truly’ considering the matter (citing Kirby J in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 595, see also the majority at 576-8). It was his submission that this inference should be drawn from the absence in the Tribunal’s reasons of a detailed examination of many particular pieces of evidence which supported the general claim.

I do not accept this submission, and am not persuaded that the Tribunal in fact did not perform the consideration which it claims to have done. In a context where it was understandable for the Tribunal to concentrate upon the specific claims of the applicants which it held were fabricated, and where an assessment of the general claim required consideration of a very large and varied assortment of evidentiary materials, I do not consider that it was incumbent upon the Tribunal to explain how it had weighed every relevant piece of evidence supporting the applicants’ claim. I therefore am not prepared to draw any inference merely from the absence of a more detailed consideration of this material.
Moreover, I accept the submission of counsel for the respondent that, in the circumstances of this case, any failure to weigh up any of the specific pieces of evidence to which I was taken would not amount to an error of law (citing WAEE v Minister for Immigration (2004) 75 ALD 630 at [46], WAFD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 257 at [35] and [37], and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [74]).
Counsel for the applicant sought to find support for his contention in events which occurred immediately before the decision was handed down in the afternoon of 17 December 2003. Material from the Tribunal’s file shows the following:
·The Tribunal member completed his reasons and signed them on 25 November 2003.
·The applicants were notified that the decision would be handed down at 2.30pm on 17 December.
·At 10.49am the applicants’ solicitor sent a facsimile transmission addressed to the Registrar of the Tribunal which enclosed ‘a letter from Amnesty International in support of the applicants’ claims’ and requested that ‘in the interests of natural justice, it be considered by the Tribunal prior to the handing down of the decision later today’.
·The letter from Amnesty International is dated 16 December and addressed to the applicant c/- his solicitors. It says, ‘I hope you find the following country information on Bangladesh compiled by Amnesty International of use in your case’.
·I was taken to the following significant passage in that letter:
Christians in Bangladesh
There are approximately 600,000 Christians, mainly Roman Catholic, in Bangladesh.¹⁷
Serious attacks on and persecution of Christians by Islamic fundamentalists have been increasing over the last two years. Evidence is emerging that the oppression of minority religion is becoming systematic. Bangladesh is being pushed towards Islamic fundamentalism by the Jamaat-e-Islami. This group is growing rapidly in impoverished rural areas and runs two key ministries.¹⁸
In June 2001, in Banlachar, Gopalganj district, a bomb exploded inside a Catholic Church during Sunday Mass, killing 10 people and injuring 20 others. A judicial commission was set up in December 2001 to investigate the bombing. The commission was comprised of three members: including a retired Supreme Court Justice and two high ranking government officials. The commission’s report on the bombing has not yet been released.¹⁹
In June 2003, in the village of Fhainjana, a mob of 200 fundamentalists looted 10 Christians’ houses, allegedly assaulting many women and children. Christians were seriously beaten and others molested after refused to give money to thugs in the village of Kamalapour, near Dhaka.²⁰
Many villages are said to be now empty of religious minorities, especially in western Bangladesh, where the Jamaat-e-Islami is particularly strong.
¹⁷ UK Home Office, Bangladesh assessment, Country Information and Policy Unit, April 2003
¹⁸ The Guardian, Rape and torture empties the villages, Monday July 21, 2003
¹⁹ Ibid.
²⁰Ibid.
·Notwithstanding its timing, the letter was undoubtedly shown to the Tribunal member by the Registrar.
·He annotated the above passage with the following note:
3 individual instances mentioned – sporadic attacks – some of this material is old (June 2001) and unrepeated, hence isolated.
He also completed a Tribunal form which briefly set out his reasons for deciding not to recall his decision as follows:
A.1. cites a document I already quoted on p.9 of the decision. Elsewhere, material cites isolated, sporadic and individualised incidents either dealt with in the decision or of a kind that has been considered in the course of making the decision. One instance cited in A.1. report involves greed – motivation, in far-flung rural location. The church bombing is an old, isolated case. The post-election violence was unique to the time of the election, and A.1. even shows so in its report. This report adds nothing of sufficient substance to the Applicants’ case to warrant even the slightest alteration to the decision as it stands.
Counsel for the applicants submitted that because the Amnesty report had reached the Tribunal before it handed down its decision, it was under a duty to consider it on the same basis as the earlier submission. Counsel for the respondent did not concede this, but submitted that the member’s notes set out above provided evidence showing that the material had not been ignored but had been given sufficient consideration under the Peko-Wallsend principle.
I accept the respondent’s submission, and reject the applicants’ submission that the wording of the note shows that the member again failed to address material supporting a claim that all Christians in Bangladesh currently have a well-founded fear of persecution under the Convention. Counsel for the applicants argued that the notes show that the Tribunal confined its consideration of the new material to assessing specific instances of persecution and excluded from its consideration Amnesty International’s general opinion that persecution of Christians is increasing and that the oppression of minority religion is becoming systematic increasing and systemic. It was also submitted that the member’s note confirmed that throughout his consideration of the case, he had confined his consideration of violence directed at Christians to ‘post election’ events in 2001 and had ignored evidence of acts of violence in subsequent years.
In view of the annotations showing that the Tribunal read the very page on which Amnesty International’s general opinions are offered and on which reference is made to attacks on Christians in 2003, I find both of these submissions impossible to accept. I consider that the criticisms of the content of the Tribunal’s note go no further than criticisms of factual assessments of material which it undoubtedly considered.
For the above reasons I dismiss the application.
Both parties accepted that costs should follow the event, but requested that I should not adopt the usual practice of making a global award at the conventional amount. They both claimed that their costs had been abnormally increased due to conduct by the other party, and sought an opportunity to present material supporting a more generous assessment of costs. I consider that it is reasonable to allow this opportunity to the respondent, and consider that it is best done by my allowing costs to be assessed against the relevant scales in the course of a costs assessment, rather than attempting myself to embark on this exercise at some future time.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: L Khaw

Date: 8 September 2004