SZCOQ v Minister for Immigration
[2006] FMCA 189
•23 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCOQ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 189 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – whether the RRT overlooked relevant material being the contents of a charge sheet considered – where several inferences are equally open concerning the RRT’s reasoning and only one point to error the applicant fails to discharge his onus of proof. |
| Migration Act 1958 (Cth), ss.54, 414, 420, 422B, 424, 425 |
| Singh v Minister for Immigration [2001] FCA 389 SZBDF v Minister for Immigration [2005] FCA 1493 SZCIJ v Minister for Immigration & Anor [2005] FMCA 1829 SZDMC v Minister for Immigration [2005] FCA 763 VAAD v Minister for Immigration [2005] FCAFC 117 |
| Applicant: | SZCOQ |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG201 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 9 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondents: | Mr J Potts |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Court directs that the name of the applicant is not to appear on the transcript.
The application is dismissed.
The applicant shall pay the Minister’s costs and disbursements of an incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG201 of 2004
| SZCOQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 2 January 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and claimed religious persecution. He arrived in Australia in June 2002 on a business (short stay) visa. He lodged an application for a protection visa on 12 July 2002. In addition to his claim of religious persecution based upon his Buddhist religion he raised fears based on actual or imputed political opinion.
After the Minister’s delegate refused the applicant’s application for a protection visa on 16 October 2002,[1] he applied to the RRT to review that decision on 17 November 2002.[2]
[1]court book, pages 51-57.
[2]court book, pages 58-61.
On 31 July 2003[3] the RRT received documents from the applicant, including some charge sheets.[4]
[3]court book, page 104 at para [28].
[4]court book, pages 69-84.
The applicant attended a hearing on 5 September 2003,[5] which was adjourned until 24 September 2003 due to the applicant’s objection to the interpreter provided.[6] The applicant attended the hearing on 24 September 2003.[7]
[5]court book, page 85.
[6]court book, page 104 at [29].
[7]court book, page 88.
After the hearing the RRT wrote to the applicant inviting comment on certain further information it had obtained,[8] and the applicant responded by letter received on 23 November 2003.[9]
[8]court book, pages 89-90.
[9]court book, pages 91-92.
The RRT made its decision on 2 December 2003, and it was handed down on 2 January 2004, affirming the decision of the delegate.[10]
[10]court book, pages 97-114.
The applicant’s protection visa claims and the decision of the RRT on them are set out in some detail in the Minister’s submissions:
The applicant provided a lengthy statutory declaration with his protection visa application in which he made a number of claims.[11] He claimed that he had experienced direct persecution including physical violence as a result of his religious affiliations. He claimed that the government was fundamentalist in nature, and as a member of a minority community, he was a victim of persecution and violence fuelled by the government. He claimed that the minority community was branded a supporter and activist of the Awami League, the main opposition party, and Buddhists and Hindus had been experiencing systematic discrimination by the authorities, and were arrested and targeted by members and activists of BNP and Jamat-e-Isami. He claimed that minorities, especially Buddhists, were being harassed and intimidated in every sphere of their lives.
[11]court book, pages 24-30.
The applicant claimed that he was one of the leaders of the Buddhist community in Raozan Thana, in the district of Chittagong. He claimed that he was very well known as a religious activist and leader of the community in his area. He said that he had been involved with the Buddhist religious organisation since 1993, and that he had represented his community nationally and internationally. He said that his participation in religious and community activities brought him to the attention of the fundamentalist political activists.
The applicant said that he had found since boyhood that members of his community were discriminated against. He claimed that during his studies he became a front line leader of minority students and unified the Buddhist and Hindu students to demand equal treatment from the authorities. He claimed to have come to the attention of the BNP government at the age of 14, in 1992, when they came to power, and to have been physically and mentally tortured by Muslim fundamentalists, and forced to leave his village. He claimed that his home was set on fire.
The applicant said that since completion of his education he had engaged himself in organising Buddhist communities in different areas, and had been involved in a number of movements. He claimed that his activities for community development brought him to the attention of political and religious leaders. He claimed that his dedication to establishing the rights of his community contributed to creating fierce enmity with influential people in society. He claimed to have been assaulted twice on the way back from temple. He said as a result of his leadership role his life was threatened, and influential personalities provoked the government agencies against him which led to false cases. He claimed that he was not able to lead a normal life. He claimed to have been arrested and detained by the BNP government in 1994 and physically tortured.
The applicant said that the minorities were always targeted and discriminated against by the government and he was one of the victims. He said that Islamic extremists occasionally attacked members of religious minorities and the government had failed to criticise, investigate and prosecute the perpetrators of these attacks.
The applicant claimed that he was Vice President of the Buddhist Student’s Association in Chittagong Polytechnic Institute on 15 March 1997. He claimed to have organised a religious festival which was attacked by fundamentalist student activists, leading to him and many others being severely injured.
The applicant said that his village, Mahamuni, was well known for Buddhist culture, and Muslims had been trying to evict the Buddhists from this village. The applicant said that he had tried to contact national leaders about this. He said that a bitter relationship was established between his family and neighbours, and his family home was attacked, and the temple and a sculpture of Buddha were demolished.
The applicant claimed that the law and order situation was very precarious. He claimed that fundamentalist groups were active in taking revenge because of their defeat in the last parliamentary election as they believed that the applicant’s community had never voted for them and that the applicant had encouraged them in their opinions. As a result, he said that they had been targeting him for his profile as a community leader.
The applicant briefly reiterated his claims in his application for review to the Tribunal.[12]
[12]court book, pages 58-61.
At the hearing the applicant gave evidence.[13] He said that his life would not be safe and that he feared terrorists who were followers of Sallaudin Kader (who had stood as a BNP candidate in parliamentary elections and lost) because they had tried to kill him many times. At no time did the applicant claim to be active in politics or to hold any position in a political party. He claimed that attempts to kill him had been made “two to four times”, but he could not remember any details and gave no additional information about these attacks. He told the Tribunal he was no longer a Buddhist and was now a “commoner”. He then amended this to say he was still a Buddhist by religion, but he no longer had the religious “costume”.
The Tribunal’s Decision
The Tribunal accepted that the applicant was from Bangladesh.[14] It accepted that he was Buddhist, a member of the Bangladesh Bouddha Bhikkhu Mahasabha (BBBM) from 1993 to 2000, and served as a religious teacher in the orphans’ home operated by the BBBM from December 1994 to November 1998.[15] The Tribunal understood from the applicant’s oral testimony that he no longer identified himself as a Buddhist monk.[16] The Tribunal considered that the applicant adopted the identity of the Buddhist monk only intermittently. It was not satisfied that the applicant had had any more sustained role as a Buddhist monk. It accepted that he was active in the Buddhist community in his home area, but had no basis on which to accept his claim to have been a leader of that community. It accepted as plausible his claims that he had travelled with a “great religious priest” in a representative capacity on behalf of his community, and his claim to have been a vice-president of the Buddhist Students’ Association at Chittagong Polytechnic in 1997, and to have had a role in organising a festival that year.[17]
The Tribunal considered that the applicant’s inconsistent claims about his attendance at a Buddhist conference in Melbourne added to concerns about the credibility of his claims to be a Buddhist of any particular prominence, or to have any significant degree of commitment, and that this called into question his claim that as a Buddhist he was a risk of persecution.[18]
The Tribunal did not accept, based on independent country information, that the government of Bangladesh intended to change the secular nature of Bangladesh society.[19] On the basis of independent country information that Buddhists were not in general subject to persecution in Bangladesh, and taking into account its findings about the applicant’s modest profile as a member of the Buddhist community, the Tribunal found that the applicant’s Buddhist faith and past activities in the Buddhist community were not sufficient to support a claim that there was a real chance that the applicant would suffer Convention-related persecution on return to Bangladesh arising from his religion.[20]
The Tribunal did not consider that the applicant was of any prominence in Bangladeshi politics. The Tribunal therefore found it implausible that the applicant was seriously expected by BNP party workers to promote their candidate through his claimed role as an influential figure in the Buddhist community.[21]
The Tribunal accepted that the applicant had been injured in 1992, but did not accept the medical practitioner’s unsupported and unexplained assertion in the medical certificate that the injuries resulted from torture by police and BNP members. The Tribunal accepted as plausible the applicant’s claim that a charge was laid against him in early 2002, but did not accept that this charge was politically motivated. The Tribunal found that nothing in that material added support to the applicant’s claim to hold a well-founded fear of persecution arising from political opinion.[22]
The Tribunal found that there was no further material to support the claim that the applicant was a target of political violence, or that there was any reason why he would be so targeted. His responses to discussion of these issues at hearing lacked detail and credibility. The Tribunal did not accept as plausible, or as supported by the material before it, that the applicant came to the attention of the BNP government when they came to power in 1992, that he was physically and mentally tortured by fundamentalist Muslims activists and forced to leave his village and that his home was set on fire, that he was attacked during a religious festival in March 1997 and severely injured, or that his family home was attacked after the 2001 election. The Tribunal found that his claim that he would be attacked and killed on his return to Bangladesh by BNP activists to be without credibility, given the applicant’s lack of political involvement and the time which had now passed since that election, in which the BNP achieved a landslide win.[23] The Tribunal did not accept as plausible the applicant’s claim to have been subjected to violence motivated by his political opinion.[24]
The Tribunal considered that the applicant’s profile as a community activist and as a Buddhist was not sufficiently prominent, based on the information available about his past activities, to lead to a real chance of his being persecuted in the conditions then applying and in the reasonably foreseeable future.[25]
The Tribunal did not consider his belated claim of economic hardship to be supported by the information before the Tribunal.[26]
[13]court book, pages 104-107 at paras [29]-[42].
[14]court book, page108 at para [43].
[15]court book, page108 at para [45].
[16]court book, page108 at para [46].
[17]court book, page 109 at para [47].
[18]court book, page 110 at para [50].
[19]court book, page 111 at para [52].
[20]court book, page 111 at [53].
[21]court book, page 111 at [55].
[22]court book, page 112 at [56].
[23]court book, page 112 at [57].
[24]court book, page 112 at [58].
[25]court book, page 113 at [60].
[26]court book, page 114 at [60].
The judicial review application
These proceedings commenced with an application for judicial review filed in this Court on 27 January 2004. An amended application was filed on 30 June 2004, and a further amended application on 13 September 2004. A second further amended application was filed in court by leave on 9 February 2006. That is the application on which the applicant relies.
The grounds of the application are:
(1)The RRT appears to have accepted the authenticity of “documents relating to a charge against the applicant” (court book, page 112.1). However, the RRT then erred in finding that there was “no information to support the applicant’s claim that this charge was politically motivated” (court book, page 112.2). Specifically, either the RRT ignored the contents of the charge document or the RRT’s reasoning was illogical.
(2)The RRT accepted the applicant’s claim that a charge was laid against him in 2002 but found that it had “no information to support the applicant’s claim that this charge was politically motivated”. The RRT should have raised its concern with the applicant on this point and given him an opportunity to comment. Subject to the operation of s.422B of the Migration Act 1958 (Cth) (“the Migration Act”), its failure to do so resulted in a denial of procedural fairness.
(3)On the face of the RRT’s reasons for decision, the RRT relied on independent country information[27] adverse to the applicant’s case without putting the information to the applicant and giving him an opportunity to comment. Subject to the operation of s.422B of the Migration Act, its failure to do so resulted in a denial of procedural fairness.
[27]court book, pages 111.1-111.5
Submissions
Both the applicant and the Minister filed written submissions and also made oral submissions through their counsel. Mr Zipser, for the applicant, submits that there are four issues to resolve (the first three of which recite the grounds of review):
a)The RRT appears to have accepted the authenticity of “documents relating to a charge against the applicant”[28]. However, the RRT then erred in finding that there was “no information to support the applicant’s claim that this charge was politically motivated”.[29] Specifically, either the RRT ignored the contents of the charge document or the RRT’s reasoning was illogical. (“charge document issue”).
b)The RRT accepted the applicant’s claim that a charge was laid against him in 2002 but found that it had “no information to support the applicant’s claim that this charge was politically motivated”. The RRT should have raised its concern with the applicant on this point and given him an opportunity to comment. Subject to the operation of s.422B of the Migration Act, its failure to do so resulted in a denial of procedural fairness. (“no opportunity to comment issue (1)”).
c)On the face of the RRT’s reasons for decision, the RRT relied on independent country information[30] adverse to the applicant’s case without putting the information to the applicant and giving him an opportunity to comment. Subject to the operation of s.422B of the Migration Act, its failure to do so resulted in a denial of procedural fairness. (“no opportunity to comment issue (2)”).
d)An issue is whether s.422B of the Migration Act displaces the common law obligation on the RRT to provide procedural fairness to applicants. (“section 422B issue”).
[28]court book, page 112.1
[29]court book, page 112.2
[30]court book, pages 111.1-111.5
Mr Zipser conceded in oral argument that the applicant could not succeed in this Court in relation to the second issue. This is on the basis of binding Federal Court authority that the so called information was in reality part of the RRT’s reasoning process that did not have to be disclosed. The submission was nevertheless formally put in order to preserve the applicant’s rights on appeal.
In his oral submissions, Mr Zipser concentrated on the first issue. He submits that a proper analysis of the RRT reasons for decision discloses a failure on the part of the RRT to consider the contents of the charge sheet relied upon by the applicant. The applicant relies on Kalala v Minister for Immigration [2001] FCA 1594 at [23], VAAD v Minister for Immigration [2005] FCAFC 117 at [24], [36] and [77], and Singh v Minister for Immigration [2001] FCA 389 at [3], [22], [25], [30], [37], [52]-[59], [60] and [65]. Mr Zipser invites me to conclude that the absence of reasoning on the question of the content of the charge sheet in the RRT decision creates an inference that the RRT overlooked relevant material, namely material indicating that the charge sheet disclosed a political motive for the charge and the probability that the charge was false because the charge sheet attributed a political profile to the applicant that he did not have.
Mr Potts, on behalf of the Minister, makes the following submissions in relation to the first ground of review:
The applicant asserts that the Tribunal accepted that the charge sheet documents[31] were genuine. He then asserts that the Tribunal’s finding that it had: “no information to support the applicant’s claim that this charge was politically motivated and does not accept that this was the case” was a finding made by either ignoring the content of the charge sheet, or through some illogical process of reasoning. Either is said to constitute jurisdictional error. This is said to be so because, it is asserted that the content of the charge sheet, coupled with the Tribunal’s other findings, are said to have necessitated a conclusion that the charges were false.
[31]court book, page 69-84.
It is trite to observe that the reasons for the decision are not to be construed minutely and finely with an eye keenly attuned to the perception of error: MIEA v Wu Shan Liang (1996) 185 CLR 259.
The Tribunal accepted as plausible the applicant’s claim that a charge was laid against him in early 2002.[32] What it did not accept was that the charges were politically motivated.
[32]court book, page 112 at para [56].
The applicant asserts that given the Tribunal’s other findings, the charges in the charge sheet could not be genuine. The applicant asserts that the Tribunal implicitly accepted that the applicant was not directly involved in politics at all. The Tribunal did not go that far. What the Tribunal said was that it: “did not consider … that he was of any prominence in Bangladeshi politics”.[33] The Tribunal’s other findings did not necessitate a conclusion that the charges were false, or that they were not politically motivated.
[33]court book, page 111 at para [55] (emphasis added).
The Court should not infer that the Tribunal failed to have regard to the content of the charge sheet. The Tribunal referred expressly to the charge sheet in its reasons.[34]
[34]court book, page 104 at [28].
The Full Court in MZWBW v MIMIA [2005] FCAFC 94 at [26]-[28] recently said:
In Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 Allsop J said that Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 231:
does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. ‘Relevant’ for this purpose means that the decision-maker is bound by the statute or by law to take this into account.
This passage was approved by Cooper and Finkelstein JJ in Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29].
In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] a Full Court said:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.... Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.
The relevant contention or issue before the Tribunal concerned the integration of the Guard Battalion with the Sri Lankan Army. That matter was squarely addressed. Assuming that the Tribunal overlooked the training evidence (which, as we have said, is a large and difficult assumption to make), that was but a failure to advert to evidence which, if accepted, might have led it to make a different finding of fact: cf WAEE above. It is not a jurisdictional error to make a wrong finding of fact.”
The Tribunal’s findings were not illogical. Taking care not to construe the Tribunal’s reasons minutely and finely with an eye keenly attuned to the perception of error, they are capable of being construed in a logical fashion. The Tribunal’s other findings relied upon by the applicant were not inconsistent with its refusal to accept that the charges were politically motivated.
Even if there was some want of logic, and it is submitted that there was not, there is a substantial divide between irrationality or want of logic in reasoning on the one hand and reviewable error on the other: MIMA v Al-Miahi (2001) 65 ALD 141 at [34]; and MIMIA v W306/01A [2003] FCAFC 208 at [46] and [78]. It is not enough to demonstrate jurisdictional error to simply say a finding was “illogical”. Something more is required. No error is evident in this case.
The first ground of review should be rejected.
The Minister relies on s.422B of the Migration Act in relation to the second and third grounds of review.
Reasoning
I reject the second and third grounds of review. I regard myself as bound by the decision of the Federal Court in SZBDF v Minister for Immigration [2005] FCA 1493. I adhere to my decision in SZCIJ v Minister for Immigration & Anor [2005] FMCA 1829 at [12]-[15].
To my mind, the real issue concerns the first ground of review. The charge sheet in issue appears in the court book at pages 69-75. On page 104 of the court book, at paragraph 28 of its decision, the RRT acknowledges receipt of the charge sheet from the applicant, apparently in support of his review application. The RRT deals with the charge sheet in paragraph 56 of its reasons[35]. The presiding member said:
In addition to the documents discussed above referring to his role in the Buddhist community, he has provided documents from a medical practitioner referring to injuries which the practitioner described as the result of torture by police and BNP members and documents relating to a charge against the applicant which he describes as false and as politically motivated. The Tribunal accepts as plausible that the applicant was injured in some way in an incident in 1992 (when he was 14) but does not accept the medical practitioner’s unsupported and unexplained assertion in the medical certificate he provided that the injuries resulted from torture by the police and BNP members. The Tribunal accepts as plausible the applicant’s claim that a charge was laid against him in early 2002 but has no information to support the applicant’s claim that this charge was politically motivated and does not accept that this was the case. The Tribunal finds that nothing in this material adds support to the applicant’s claim to hold a well-founded fear of persecution on return to Bangladesh arising from political opinion.
[35]cort book, page 112
This case can be distinguished from VAAD. In VAAD, the Full Federal Court found that the RRT had erred in rejecting to a document based on an erroneous view of the date of receipt of the document. No such error was made here. The RRT considered the charge sheet and gave full weight to it.
The more significant issue is whether, based on the authority of the decision in Singh, the RRT erred in failing to have regard to all of the contents of the charge sheet. That case concerned the obligation imposed on the Minister by s.54(1) of the Migration Act to have regard to all of the information in an application for a visa. The charge sheet was submitted in support of a review application. Mr Zipser submits that a like obligation arises from s.424 of the Migration Act. I reject that submission as s.424 relates to information proactively obtained by the RRT, rather than information volunteered by a review applicant: see SZDMC v Minister for Immigration [2005] FCA 763 at [20]-[28]. Nevertheless, the Minister concedes that a like obligation can be implied from s.420 and the general law. Sections 414 and 425 may also be relevant.
The question is, was the obligation met? In my view, the applicant is unable to discharge his onus of proving that it was not. Paragraph 56 of the RRT’s reasons is not clear on its face in that it is unclear what the presiding member meant by saying that he had no information to support the applicant’s claim that the charge was politically motivated. Neither is it clear why the presiding member found that nothing in the material before the RRT added support to the applicant’s claim to hold a well-founded fear of persecution on return to Bangladesh arising from political opinion. In the absence of clarity on the face of the RRT’s reasons, the Court is entitled to draw inferences.
There are several possible inferences to be drawn. One is, as submitted by Mr Zipser, that the presiding member overlooked the obvious political content in the charge laid against the applicant and thus failed to pay any meaningful regard to the content of the charge sheet. Another is that the presiding member was well aware of the political content in the charge sheet but did not consider that that gave rise to any necessary implication about the motivation in laying the charge. It may have been, for example, that the presiding member regarded the charge as false but did not see any political motivation. The motivation might have been personal animosity. Another possibility is that the presiding member might have regarded the charge as genuine but incompetently drawn. I see nothing to prefer one inference over the others. I conclude that the applicant is unable to discharge his onus of proving that the presiding member failed to pay due regard to the content of the charge document.
I will dismiss the application.
Costs should follow the event in this case. In my view $5,000 would be adequate recompense to the Minister for a matter of this complexity, when assessed on a party and party basis.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 23 February 2006
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