SZCNY v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)

[2006] FCA 1125

FEDERAL COURT OF AUSTRALIA

SZCNY v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)
[2006] FCA 1125

SZCNY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 427 OF 2006

MADGWICK J
31 JULY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 427 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCNY
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE OF ORDER:	31 JULY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs assessed in the sum of $4500.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 427 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCNY
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	31 JULY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. This is an appeal from decision of the Federal Magistrates Court constituted by Raphael FM which dismissed an application for judicial review of a decision adverse to the appellant made by the Refugee Review Tribunal (‘Tribunal’).

2. The appellant is a Bangladeshi national who came to Australia in February 2003.  He was a well-educated businessman in Bangladesh who had travelled abroad a number of times.  It was accepted that in giving his evidence, there was nothing specific to discredit him. Therefore his claim that he was a leading member of the Awami League may be accepted.  He claimed to fear persecution for reasons of his political opinion, from Bangladesh Nationalist Party (‘BNP’) supporters in general and in particular from an individual from his local area with whom he had had trouble in the past.

3. His claim to fear serious harm for political reasons hinged on three incidents.  The first was that in October 2001 his home was ransacked by BNP inspired operatives at a time when he himself was not home.  His brother was beaten, his wife was abused and he claimed, and it was apparently accepted, that this particular attack took place at the instigation of the particular BNP individual to whom I have referred.  The second incident involved an attack on, and looting of, some business premises of the appellant in January 2002.  The third incident concerned a large demonstration against the BNP government in which the appellant apparently played a leading role.  He claimed to have been beaten by the police and hospitalised on that account, but in particular he said that he had been falsely charged with the throwing of bombs which in fact had been thrown by BNP antagonists.  It is clear that he left Bangladesh soon after that demonstration.

4. The first complaint is that the Tribunal made a jurisdictional error by ‘failing to consider whether [the] attacks on the Appellant in 2001 [were] caused ... by’ the particular BNP enemy of the appellant.  The Tribunal Member does not seem to have considered whether that BNP individual was in fact involved in the October 2001 incident, and may have assumed that he was not because the Tribunal Member said:

   ‘The Applicant also stated at [the] 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’.

   However the Tribunal Member continued:

   ‘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 ...’

5. In any case, the Tribunal Member treated the October 2001 incident as an instance of disorder which was apparently fairly common after elections which then took place, and which were quickly quelled in urban areas.  The Tribunal Member said of the attack on his home that the appellant ‘has not claimed that there have been any subsequent attacks on his home or family in the ensuing two years’.

6. As to the January 2002 invasion of his business premises, the Tribunal Member said that this ‘incident (in a country with a high rate of violent crime) appears to have been essentially an armed robbery, of goods and of cash on the premises ... and the evidence does not establish whether the incident was connected to [the appellant’s business activities or political differences with others] or was simply a criminal enterprise’.  The basis of the appellant’s claim that his BNP antagonist was behind the attack was that it was a brazen attack in broad daylight. 

7. The Tribunal Member observed that that incident had not led the appellant to leave Bangladesh to seek protection in Australia although he had held a valid passport at that time.  The Tribunal said that it was satisfied that:

   ‘if the Applicant had a well-founded fear of serious harm because of this incident or for any other reason at that time, he would have left Bangladesh then or soon thereafter, and not a year later.’

   And continued:

   ‘The Tribunal is not satisfied that this incident of itself amounted to or demonstrated persecution of the Applicant for a Convention reason.’

8. Some point was made that the Tribunal had failed to prospectively consider the risk of persecution as distinct from whether past persecution had occurred, but read fairly as Raphael FM indicated, this is a mere verbal quibble and it is clear enough that the Tribunal did not misunderstand its task in that respect.

9. The Tribunal later found:

   ‘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 Tribunal does not accept that the Applicant’s circumstances are such that he would be pursued, identified and targeted wherever he might go in Bangladesh ... [which] has a population in excess of 130 million.’

10. Even if it be a correct interpretation that the Tribunal Member did not determine whether or not the particular BNP individual was the moving force behind the 2001 and 2002 attacks, in the circumstances of the particular case, that does not demonstrate jurisdictional error.  It is clear that the Tribunal Member was not satisfied that the January 2002 attack had any political motivation; that either of the 2001 or the January 2002 attacks had in fact given rise to any actual fear of persecution on the part of the appellant, that, thirdly, both of the attacks being of a local nature, the applicant would be at risk elsewhere in Bangladesh and there was no reason why he could not internally relocate.

11. Those other matters having been determined unexceptionably in a jurisdictional sense by the Tribunal, it was not incumbent upon the Tribunal to make the finding which he is criticised for not making.  I am unable to see how there is any possibility of a different result of the case had a positive finding been made that it was the particular BNP individual who was the author of one or both of the attacks.  It is perfectly possible for a political enemy also to be a common criminal and to attack the object of his enmity for common criminal reasons.

12. The next matter of complaint concerns the third incident.  A number of criticisms of the Tribunal’s reasoning were referred to.  In general, I think that Raphael FM was right for the reasons that he gave.  One of the criticisms was that there was before the Tribunal a letter purportedly from (and the provenance of which was not questioned by the Tribunal) the Bangladesh Awami League’s General Secretary.  The author certified as to the appellant’s membership and activity within the party and concluded:

    ‘Due to his political belief and activities he has become a target of present government and his life is really unsafe under the present regime.  If he comes back to Bangladesh he will be incriminated in false cases and a subject of brutal torture.’

13. The suggestion is that this was apparently weighty confirmation of the particular allegation by the appellant that he was the subject of false charges arising out of the December 2002 public event and that the laying of such false charges likely had a political motivation.

14. It is true that, in a general way, the letter tends to corroborate the appellant’s claim, and also true that the Tribunal did not say why it discounted such potential corroboration. Nevertheless, although in some cases a failure to deal with highly germane evidence may indicate failure of jurisdiction by demonstrating a failure to have regard to all of the relevant material, I do not think that that is so in this case.  In the first place, the material is very general as to the appellant’s risks.  In the second place, it does not refer at all to the actual charges arising out of the December 2002 demonstration.  Thirdly, the Tribunal Member gave his reasons for not being satisfied that those charges were politically motivated.

15. Those reasons were that:

    ‘it is notorious that both sides in Bangladesh politics come prepared for and engage in violence at demonstrations ... 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 wholly unfounded and capricious.

    The Tribunal does not consider it self-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 the difficulties in relation to any outstanding complaints or charges arise essentially and significantly for a Convention reason ...’

16. Next it was said that, in effect, logically an actual finding that the police honestly believed in the truth of the charges would necessitate dispelling a fear that they were politically motivated.  Matters of ‘logic’ such as that do not go to what might be called root and branch irrationality of a kind that can sound in jurisdictional error.

17. It seems to me that in a jurisdictional sense the Tribunal Member dealt adequately with the claims that were before him.  For these reasons the appeal will be dismissed with costs, assessed in the sum of $4500.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:
Dated:       23 August 2006

Counsel for the Appellant:	Mr J Azzi
Counsel for the Respondents:	Mr T Reilly
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	31 July 2006
Date of Judgment:	31 July 2006