SZCNY v Minister for Immigration
[2006] FMCA 277
•13 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCNY v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 277 |
| MIGRATION – Review of decision of RRT – whether Tribunal’s failure to consider elements of the applicant’s claims constituted jurisdictional error. |
| Migration Act 1958, s.91R Federal Magistrates Court Rules |
| Applicant: | SZCNY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG172 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 13 February 2006 |
| Date of Last Submission: | 13 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG172 of 2004
| SZCNY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh. He arrived in Australia on 28 February 2003. On 25 March 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 8 April 2003 a delegate of the Minister refused to grant a protection visa and on 2 May 2003 the applicant applied for review of that decision. The applicant attended an interview with the Tribunal and was represented by his migration adviser. On 3 December 2003 the Tribunal determined to affirm the decision not to grant a protection visa. It handed that decision down on 2 January 2004.
The applicant was a business man in Bangladesh. He is well educated and has a wife and son remaining in that country. He has travelled abroad. The applicant claimed that he became associated with the Awami League originally whilst at college and in 1986 became the General Secretary of the Youth Wing of that party at his university. After he left university in 1990 he continued his involvement with the Awami League and worked for the unsuccessful local candidate in the national parliamentary elections in February 1991. The applicant claimed that he was a member of the City Executive of the AL in 1993 and became involved in national elections again in 1996 and in 2001.
The applicant told the Tribunal that on 9 October 2001 his house was ransacked by the newly installed BNP led coalition. His brother was beaten and his wife was abused, although he was not at home at the time. The applicant claimed that this attack took place at the instigation of a particular member of the BNP with whom he had crossed swords. The applicant told the Tribunal that on 25 January 2002 his business centre was attacked and looted by BNP activists. In December 2002 the applicant claimed to have led a big procession against the government which resulted in clashes with the Police when he was beaten and spent some time in a clinic.
At the hearing the applicant expanded on this somewhat by telling the Tribunal that the other side had thrown bombs and that he had been charged with throwing bombs and heard about these charges at the end of December 2002. The applicant produced, for the benefit of the Tribunal, a letter from an advocate retained by himself and found at [CB 66], which states:
“I hereby inform you sorrowly that, a Case No. 22(12)02 registered against you in your [details]. I am moving your case in the court. The Ld. Court issued W/A against you to arrest. Your case is serious in nature. Policemen are searching you in everywhere. On the other hand, your anti-party workers are trying to doom your life. If your are arrest then you will must put into the jail-custody for a long time. In this moment your life is not safe at Bangladesh.”
The applicant left Bangladesh in February 2003 and sought asylum in Australia. The Tribunal generally accepted the applicant as a credible witness and did not make any finding contrary to his submissions that he had been a member of the Awami League and involved in the political activities that he had described. The Tribunal considered the complaints of persecutory conduct prior to 2001 and stated at [CB 352]:
“The applicant also stated at hearing that he had been targeted by a particular BNP supporter in his local area. However, although the applicant attributed to this person a post-election invasion of his home and the attack on one of his business premises in January 2002, nothing else specific was attributed to this person (who was not alleged to have been involved in the clashes between rival BNP and Awami League supporters in which the applicant was involved in 1991 and 1993, nor, indeed the clash in December 2002). Up until 2001, any difficulty with this person appeared to have amounted to no more than mutual hostility and antagonism arising from their opposing political allegiances, rather than anything specific which might be said to amount to persecution. Nor did any of the earlier matters lead the applicant to contemplate seeking protection in Australia when he visited in 1992 and 1994 (or elsewhere during his overseas travels in the 1990s).
This then leaves the matter squarely reliant on the incident in October 2001; that in January 2002; and the demonstration in December 2002 and the ensuing charges.”
The Tribunal came to the view that because the applicant had not left Bangladesh prior to the December 2002 incident, that:
“If the applicant had a well-founded fear of serious harm because of this incident [January 2002] or for any other reason at that time, he would have left Bangladesh then or soon after, and not a year later. The Tribunal is not satisfied that this incident of itself amounted to or demonstrated persecution of the applicant for a Convention reason.”
The Tribunal then went on to assess the incident in December 2002 which it said was followed most closely by his departure. The Tribunal also talked about the false charges which had emanated from that incident. The Tribunal considered the question of false charges and noted at [CB 355]:
It is not of itself incredible or outrageous that following such a clash the police might charge Awami League participants in relation to the violence. The fact that a person who may ultimately be found innocent is charged is not of itself necessarily indicative of persecution unless the charges are clearly and wholly unfounded and capricious.
The Tribunal does not consider itself evidently unreasonable or persecutory that the police should treat seriously and act in accordance with any perceptions or complaints or allegations that the applicant committed offences in relation to violent clashes at the December 2002 demonstration. In the circumstances, it is by no means self-evident that difficulties in relation to any outstanding complaints or charges arise essentially and significantly for a Convention reason (rather than because of the applicant's alleged involvement in the alleged offences) or that they amount to persecution.
Finally, the Tribunal after indicating its view that it was understandable that the applicant would be wanted for at least questioning in respect of the incident in December 2002, and that there was no claim that following this incident, the applicant's family had been abused, considered the possibility of relocation. It states [CB 356]:
In any event, in relation to any local difficulties apprehended by the applicant with any particular person or persons to whom he is personally known in his own district, the Tribunal is satisfied that the applicant could reasonably avoid such difficulties living in one of the other large and densely populated cities of Bangladesh.
The applicant, who was ably represented by Mr Zipser, has reduced his complaints concerning the Tribunal's decision making processes to four. Firstly, he argues that the Tribunal failed to consider whether the October 2001 attack was carried out by the political antagonist for the purposes of assessing whether the January 2002 attack was also politically motivated, and that failure, he argues, constitutes a jurisdictional error. It is correct that the Tribunal did not spell out a conclusion as to whether or not the BNP supporter was responsible for both attacks. Indeed, the Tribunal does not really confirm the applicant's allegation that he was responsible for the first. What the Tribunal does do is to say that neither attack gave rise to a well-founded fear of persecution, but what I think the Tribunal meant was that neither attack constituted persecution for the purposes of s.91R.
This seems to me a more felicitous way of expressing its view that the applicant's failure to leave the country as a result of these activities indicated that he did not take them particularly seriously and, therefore, rather than having "no fear", he had "nothing to fear". I cannot see how Mr Zipser can argue that the failure to make this finding constitutes a failure to take into account a relevant consideration or a failure to deal with a claim made.
The second way in which Mr Zipser alleges that the Tribunal fell into jurisdictional error also relates to this phrase concerning the October 2001 and January 2002 incidents. Mr Zipser says that because the Tribunal found that the applicant did not have a genuine fear of persecution at that time, it mistakenly asked the relevant jurisdictional question in relation to the wrong time period, which should have been in December 2003. I do not accept this for two reasons. The first and most important reason is that I actually think that the Tribunal was using short-hand when it made that reference to no genuine fear of persecution, as I have explained in the previous paragraph. The Tribunal sets out at the commencement of its findings and reasons the standard law on the matter and clearly acknowledges that it is under a duty to make a finding as at the date of the hearing. A reading of the Tribunal's reasons, in full, should be enough to satisfy a court that this Tribunal made the decision based upon the situation in December 2003 having dismissed the 2001 and early 2002 incidents as not being sufficiently serious to constitute persecution.
The third issue argued by Mr Zipser is that the Tribunal fell into jurisdictional error in making a finding that the applicant would not suffer a real chance of persecution for a convention reason as a result of the false charges laid against him. Mr Zipser says that the Tribunal erred by not considering whether the charges were fraudulently laid or whether they were honestly laid. If they had been fraudulently laid, it is suggested that there was a real chance that the applicant's political opponents would give false evidence against him, and that he might be convicted.
The Tribunal addressed the question of the false charges over a number of paragraphs at [CB 355-356]. It did mention that charges could be considered to be persecutory if they were wholly unfounded and capricious. But it then goes on to discuss the charges and the events which led up to them in such a way that, properly read, it can be seen that the Tribunal came to the view that any charges that might have been laid did not come within that definition.
Essentially, the Tribunal took the view that as the applicant had been involved in a demonstration at which bombs were thrown, it was not totally unreasonable for charges to be laid against certain people for throwing those bombs, and that if the applicant was one of the people against whom some of the charges had been laid, he would have his opportunity to defend them. For this reason, I am unable to accept Mr Zipser's third argument.
Finally, Mr Zipser submits that the Tribunal have ignored information contained in the letter from the general secretary of the Awami League. This letter is found at [CB 65]. The Tribunal makes reference to the letter at [CB 348] and summarises it. In those circumstances, it is difficult to suggest that the Tribunal ignored the document. What it did do was to place no importance upon the assertion made in that letter. This is very different from ignoring the letter altogether. The Tribunal, as the decision-maker of fact, is entitled to take into account such evidence as it believes is important for the purposes of its decision and to ignore other evidence that it does not consider to be relevant or persuasive.
The Tribunal may also consider evidence and disregard it for reasons of its own. These reasons did not have to be spelt out and the Tribunal is under no requirement to deal with each and every allegation or factual issue raised by an applicant in its reasons for decision. The Tribunal's duty is to hear the applicant but not to laboriously trawl through everything he has said in order to rebut it.
I am therefore unable to accede to Mr Zipser's suggestion that the Tribunal's actions in this regard also amounted to jurisdictional error. In the circumstances I am not required to consider Mr Reilly's final point that the Tribunal had in any event decided that this applicant was able to relocate within Bangladesh. Mr Reilly concedes that the relocation point would not be relevant in respect of any claim in regard to the false charges and it is best that I do not trespass further upon that finding.
I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $5,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM
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