SZCPK v Minister for Immigration
[2006] FMCA 410
•17 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCPK v MINISTER FOR IMMIGRATION | [2006] FMCA 410 |
| MIGRATION – Review of decision of RRT – whether the Tribunal failed to consider a claim of the applicant as an independent claim – whether the Tribunal applied a test other than the “real chance” test – whether failure to give the applicant the opportunity to comment upon adverse findings of the Tribunal would result in a failure to accord procedural fairness – whether the Tribunal wrongly found that adequate protection was available to the applicant. |
| Migration Act 1958 (Cth), s.422B |
| SZBDF v Minister for Immigration [2005] FCA 1493 SZEGT v Minister for Immigration [2005] FCA 1514 WACO v Minister for Immigration [2003] 131 FCR 511 Moradian v Minister for Immigration [2004] 142 FCR A v Minister for Immigration [1999] 53 ALD 545 |
| Applicant: | SZCPK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG 245 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 17 March 2006 |
| Date of Last Submission: | 17 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondent: | Mr T Reily |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 245 of 2004
| SZCPK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
There are three applicants in this proceeding: a husband, a wife and a child. The Tribunal referred at all times in its decision to the husband as the applicant and I propose to follow that course in these reasons for decision. The wife and child did not attend the hearing before the Tribunal and did not submit any independent claims for protection.
The applicant is a citizen of Bangladesh. He arrived in Australia on
11 May 2003. On 4 June 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 27 June 2003 a delegate of the Minister refused to grant the protection visa and on 24 July 2003 the applicant applied for review of that decision. The applicant attended a hearing with his adviser and on 4 December 2003 the decision not to grant a protection visa was affirmed. It handed that decision down on 7 January 2004. The applicant's claim to have a well founded fear of persecution for the Convention reason of religion arose out of the fact that in 2002 he joined the Baptist Church in Bangladesh. He was baptised in August 2002. Between that time and when he left Bangladesh in May 2003, he claimed to have been the subject of persecution from his family and his community. He feared that if he returned he would continue to be subject to such persecution.
The Tribunal accepted that the applicant was a convert to the Christian religion and had become so in Bangladesh, but it took a view about the depth of that conversion and found at CB 111:
“The Tribunal is not, however, satisfied that the applicant has a deep or unequivocal commitment to Christianity or will remain a Christian for the rest of his life as he claimed.”
The Tribunal went on to make a finding in relation to the wife and child that they would not be considered to have been converts to Christianity if they returned to Bangladesh. The Tribunal concluded at CB 116:
“Taking account of the applicant's evidence together with independent country information, the Tribunal considers that the applicant (and his family) would be able to return to Bangladesh without facing a real chance of Convention related persecution arising from their association with the Baptist Church. The Tribunal finds that nothing in the material before it in relation to this application supports the contention that the applicant would be subjected to harm or mistreatment at a level serious enough to amount to persecution as discussed in paragraph 8 above because of his ethnicity, religion, nationality, membership of a particular social group or political opinion. The Tribunal therefore finds that the applicant does not have a well founded fear of persecution within the meaning of the Convention and is accordingly not a refugee as defined in Australian law.”
The applicant has two complaints about the findings of the Tribunal, although these are divided into some sub headings. The first is described by Mr Zipser, who appears for the applicant, as "the mistreatment of minorities’ issue". At CB 107 the Tribunal notes:
“The applicant's adviser said that the applicant held a genuine fear of suffering harm and mistreatment if he returned to Bangladesh. The adviser said that in fact the applicant faced a real chance that the risks he had claimed were not far fetched or remote. He referred to country information on the mistreatment of minorities and to the special problems faced by converted Christians. The role of Muslim fundamentalists in the current government could not be denied and there had been many murders.”
Mr Zipser argues for the applicant that the Tribunal did not consider this independent claim. He argues that the claims considered by the Tribunal were really restricted to the claims of persecution arising out of the attitude taken to the applicant by his family. I am not able to accept this view of the Tribunal's conclusions. At CB 111 the Tribunal states:
“The applicant has referred to family and community criticism of his conversion to Christianity and the Tribunal accepts that his decision may have been regarded as eccentric and unwelcome in his family and community. The Tribunal accepts from the applicant's testimony and the independent country information cited above, that Bangladesh is a prominently Muslim country and that there is some discrimination by the Muslim majority against the Hindu, Christian and Buddhist minorities and strong social resistance to conversion from Islam, but the Tribunal also takes account of the independent country information cited above on guarantees of freedom of religion in Bangladesh and of the assessment by the Australian Department of Foreign Affairs and Trade that, while Bangladesh has its religious extremists, the majority of Bangladeshi Muslims practise a tolerant form of the religion ...”
Mr Zipser's criticism as expressed in his helpful written submissions makes reference to a number of community based discriminatory activities and he complains that the Tribunal did not deal with these, which are contained in the independent country information provided. Of course, it is quite true that the Tribunal does not have to deal with each and every matter raised as part of the evidence, as it is equally required to deal with individual claims that are raised by an applicant. I am satisfied that the references to community criticism in paragraph [51]of the Tribunal decision and then the references in paragraph [58] to information concerning extreme Muslim pressure on the Bangladeshi government which quotes independent country information, indicates that the Tribunal did deal with the specific point made by the adviser and recorded by the Tribunal at CB 107.
The second issue is described by Mr Zipser as the "threats in letters issue". The applicant produced three letters, found at CB 59-61, from community organisations in Bangladesh threatening the applicant in a most severe form. The Tribunal acknowledged that in the absence of any evidence to the contrary, it was obliged to accept the genuineness of those letters, but it is its conclusion about them that offends the applicant. At CB 114 the Tribunal says:
“The Tribunal has no basis in the material before it on which to regard these documents as other than genuine and accepts them as such. The Tribunal is not, however, satisfied that the threats in these letters would be carried out. They may more accurately be seen as part of community pressure on Muslims who convert to Christianity. If in fact the applicant has been threatened with violence by these persons and faces some similar threat on his return to Bangladesh, the Tribunal considers in the light of the Bangladeshi government's commitment to maintain a secular Bangladesh, that he would be able to obtain effective assistance from the authorities against what would be illegal acts of violence and that he would not be subjected to extra illegal treatment under the Sharia law as his adviser has claimed.”
The reference in the third sentence of that extract would seem to confirm the matters which I discussed above in relation to the adviser's claims. The first complaint Mr Zipser has about this finding is that he says that it indicates that the Tribunal applied the wrong test when considering whether the threats would be carried out. He argues that the Tribunal applied a test based upon some standard of proof and not the "real chance" test that is the required test in these proceedings. There is no suggestion that I should do otherwise than draw some inference from the words used to make the finding that Mr Zipser requests me to make.
There is no other evidence. But contrary to the suggestion put forward, I note that the Tribunal at CB 100 deals with the real chance test in connection with a well founded fear and so could be said to be aware of that test. Again, at CB 116 in the part of the decision which I have already extracted at [13], the Tribunal refers to a “real chance of Convention related persecution”. In the light of these clear references to a real chance and in the absence of any other indication that the Tribunal used some other standard, I am unable to support the submission made by the applicant.
The other claim made by the applicant in relation to this finding is that the applicant was given no opportunity to comment upon it. Mr Zipser acknowledges that the current state of the law obliges me to follow the decisions of the Federal Court in SZBDF v Minister for Immigration [2005] FCA 1493 and SZEGT v Ministerfor Immigration [2005] FCA 1514, which hold that there is no breach of procedural fairness because of the effect of s.422B Migration Act 1958 (Cth) (“the Act”) in closely defining what shall be considered to be the "fair hearing rule".
Mr Zipser wishes to protect his position to argue that the decisions of the Federal Court in WACO v Minister for Immigration [2003] 131 FCR 511 and Moradian v Minister for Immigration [2004] 142 FCR 170 are the better interpretations of the Act in this regard.
Finally, the applicant complains that the Tribunal made a finding that there was effective protection available to the applicant without indicating the material upon which it relied in making this finding and that in doing so it fell into jurisdictional error. The Tribunal made the finding about effective assistance because of its views as to the commitment of the Bangladeshi government to maintain a secular Bangladesh. Those views were supported by independent country information that is reproduced in the court book at CB 143 and the information contained in the report of the US Department of State which commences at CB 119 and contains the now familiar information concerning the independence of the Bangladeshi judiciary at the higher levels.
Mr Zipser in his written submissions extracts from the decision of the Full Federal Court in A v Minister for Immigration [1999] 53 ALD 545 two paragraphs at [42] and [43] which, to my mind, indicate that the Tribunal is entitled to take into account information with which it has become familiar from its dealings with particular countries:
“In such case and in the absence of evidence advanced by the claimant, the delegate will be entitled to reject the contention that the claimant is unable or unwilling because of the well founded fear of persecution for a Convention reason to avail himself or herself of the protection of that country.”[42]
I am unable, as requested by the applicant, to find that there is no such material upon which the Tribunal relied for the conclusion concerning effective state protection. The matters raised above are the remaining matters relied upon by the applicant, whose original amended application was somewhat wider.
It follows from what I have said that I must dismiss this application, which I do, and order that the applicant pay the respondent's costs, which I would assess in the sum of $5.000.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 23 March 2006
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