SZDFZ v Minister for Immigration
[2007] FMCA 1529
•13 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDFZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1529 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal – visa – protection visa – a “no evidence” submission not appropriate when rejection of allegation based on implausible and illogical evidence adduced by applicant – Tribunal’s decision was rational – applicant given a real and meaningful invitation to address the issues before the Tribunal – Tribunal did not create a dichotomy between persons who would be persecuted and persons who would not – Tribunal addressed the claims as made. |
| Migration Act 1958, ss.91X, 425 |
| WAJS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 139 M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [48] Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [46] NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 |
| Applicant: | SZDFZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3593 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 16 March 2007 |
| Date of Last Submission: | 16 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms. T. Wong |
| Solicitors for the Applicant: | Gilbert & Tobin |
| Counsel for the Respondents: | Ms. A. Michelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3593 of 2006
| SZDFZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 16 February 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on 31 October 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 13 May 2003 refusing the applicant’s application for a protection visa.
The Tribunal decision the subject of these proceedings is the second Tribunal decision on the applicant’s protection visa application. The first decision was set aside by order of this Court on 19 July 2006.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background Facts
The Tribunal described the applicant as follows:
The Applicant was born in 1948. He is now 58 years old. (Court Book (“CB”) page 398).
The applicant claims to have been persecuted and to fear future persecution in Bangladesh because of his political opinions.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-14 of the Tribunal’s decision (CB 398-408). Relevantly, they are in summary:
a)the applicant claimed that “false charges” were brought against him in 1969 in connection with a gang robbery in an attempt to stop his political activities;
b)the applicant was a member of the Central Committee of the Chittra League at Dhaka University in 1971-72. From 1970 through to the declaration of independence from Pakistan, the applicant claimed to have had various roles in the student movement supporting independence. He fled to India in 1971 and joined the Bangladesh liberation front as a freedom fighter;
c)in 1986 the applicant claimed that he commenced a money exchange business in Dhaka. He was detained for 12 days by the police and released without charge;
d)in 1988 the applicant campaigned for Awami League candidates in the municipal elections. He was “falsly [sic] accused” and charged with trying to force a Jatiya Party candidate to stand down, and of breaking into the homes of political rivals;
e)the applicant claimed in March 1994 that he organised a large demonstration to march on Parliament House, Dhaka. The police responded, many were arrested and the League’s President killed. The applicant claimed that he was injured by a bomb splinter. Subsequently, the police raided the applicant’s home looking for him but he was away;
f)following its election in October 2001 and with the protection of the army, the new BNP alliance government started “Operation Clean Heart” to harass members of the Awami League leadership. Members were killed, women raped, property destroyed and many injured. The applicant claimed that in his village, his mother was threatened and her house was damaged as the BNP supporters sought to find him. On two occasions the applicant’s home was ransacked by party opponents;
g)in June 2002, five Awami League leaders, including a friend, were killed by the police;
h)on 30 November 2002 the applicant attended a political meeting at party headquarters which was broken up by the police using tear gas and batons. Party leaders were detained but he escaped;
i)in January 2003 the Jubo League organised a demonstration in response to the laying of “false charges” against the party leader. The police responded by attacking the procession and attempted to arrest the applicant. During the fracas the applicant was hit on the back but escaped;
j)in February 2003 the applicant was elected a senior executive member of the Awami Youth wing for a three year term. In March 2003 the police and BNP/Jameat supporters again attacked the Jubo League members including the applicant. He went into hiding. The army was looking for him. They damaged property, beat his younger son and verbally abused his wife. The applicant claimed that he ran away and could not return to his home because the police were looking for him;
k)the applicant decided to leave Bangladesh claiming it was too dangerous to remain there. Following his departure, the applicant claims that “false charges” have been brought against him and that the police and army are still looking to arrest him if he returns.
The Tribunal as originally constituted instituted enquiries into the genuineness of documents submitted by the applicant in support of his claim that false charges had been laid against him. Following advice from the Department of Foreign Affairs and Trade that the documents were false, the applicant conceded this and submitted that they may have been manufactured by an unethical Bangladeshi lawyer to intimidate him as an opponent politician. The applicant’s adviser is recorded as having stated:
… the applicant accepts that the Charge documents are probably false. It has become a common occurrence in Bangladesh for unethical lawyers (acting sometimes in collusion with court officials and police officers) to furnish documents relating to non-existing charges to extract money from people or, on occasion, to intimidate opposition politicians. The applicant instructs that a solicitor told the applicant’s wife that there were charges against her husband and demanded 12,000 Taka (about $A 300) from her in return for giving her the charge documents. She gave him the money and then subsequently sent the papers to the applicant (who submitted them to the Tribunal). The applicant therefore accepts that there are no charges against him in connection with these documents.....The applicant was the victim of deception by an unscrupulous Bangladeshi lawyer and was unaware that the charges were not authentic. (CB 401).
On 29 September 2006 the applicant’s adviser wrote to the Tribunal (CB 332 – 344). Attached to that letter was an undated open letter from the Bangladesh Awami League, Australia (Inc.) which stated:
As a sincere, dedicated and significant level of leadership [the applicant] has become an executive member of the Bangladesh Awami League of its Australian branch. (CB 343).
This assertion was not elaborated on.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal accepted that the applicant was philosophically and politically aligned with the Awami League but was not satisfied that he faced a real chance of persecution in Bangladesh simply for aligning with, professing an alignment with and voting for the League;
b)the Tribunal found that the applicant had been knowingly complicit in presenting documents concerning charge sheets which were misleading and concluded that his complicity in representing them as genuine, formally-lodged charge sheets undermined his general credibility;
c)although the Tribunal accepted that the applicant may have been subject to false charges prior to the Awami League government of 1996-2001, no weight was given to this information given the passage of time and subsequent political developments;
d)the Tribunal did give weight to the lack of reliable evidence of the applicant having been seriously mistreated in recent years, noting that the message from the Australian High Commission in Dhaka received by the Tribunal on 3 February 2004, quoted at CB 401, reported that the Awami League was not aware of any case filed against the applicant. The Tribunal took this to indicate that the Awami League takes an interest in whether or not its members are under attack;
e)the Tribunal was not satisfied that the applicant would face a real chance of being persecuted in Bangladesh simply for being a member or a former member of the committee to which he claims he was elected in February 2003 given that so many other members of the Jubo League continued their work and continued to hold their posts;
f)the Tribunal did not accept the applicant’s evidence that he was still a member of the central committee of the Jubo League as, by his own evidence, his three year term expired in February 2006, well prior to the Tribunal hearing of 18 September 2006;
g)the Tribunal observed that the applicant had made no claim to having been re-elected in absentia and generally showed no evidence of ongoing interest in the life of the Jubo League, let alone its governing body and operations;
h)the Tribunal was of the view that the applicant had “lost interest in politics years ago”, retained little interest in living or working in Bangladesh and decided to stay in Australia upon coming to Australia to visit his son;
i)the Tribunal did not accept that the applicant had avoided harm up to the October 2001 election in Bangladesh by modifying, let alone curbing, his behaviour. The Tribunal did not accept as reliable the applicant’s claim about the November 2001 attack upon his home and related intimidation and threats, noting that although the applicant claimed he feared the gang would kill him if they found him, he did not alter his pattern of living, continued to reside at his residence in Dhaka with an incongruous confidence as to his safety, did not entertain the thought of fleeing Bangladesh and did not use his passport to do so;
j)the Tribunal gave weight to the fact that the applicant travelled out of Bangladesh to India and voluntarily returned in early 2002 notwithstanding that he had supposedly begun to suffer serious harassment from November 2001 onwards;
k)the Tribunal did not accept that the applicant was involved in the demonstration in January 2003, finding that the evidence he provided in this respect was contradictory and far-fetched. The Tribunal stated itself to be of the view that the applicant had misleadingly placed himself in the claimed events of 2003 in order to argue why he did not leave Bangladesh much earlier than he did although he had the resources to do so and had in fact travelled outside Bangladesh but returned;
l)the Tribunal was of the view that after 2001, and certainly from 2003 to 2006, the applicant was not significantly involved or interested in politics, let alone actively involved, on the basis that he had demonstrated negligible interest in and detailed knowledge of his party’s operations in his absence and also given that the Tribunal dismissed as unreliable the information he gave about activities and experiences since 2001;
m)the Tribunal also found that the applicant lost interest in politics years ago, by reason of which it did not accept that he would throw himself into politics upon his return to Bangladesh or that any future lack of involvement in Bangladeshi politics would be due to any modification of behaviour on his part in order to avoid persecution;
n)in respect of the possibility that the applicant faced a real chance of persecution for reasons of his previous political involvement, the Tribunal was not satisfied that contemporary reports of attacks on then-currently active Awami League figures were evidence that the applicant would be similarly treated by supporters of opposing political parties or by the authorities in Bangladesh, notwithstanding his past profile. In this regard, the Tribunal put weight
… on the significant distinction drawn by the Applicant himself between persons who continue to be actively involved in the political process in Bangladesh and person [sic] who do not. (CB 411).
Proceedings in this Court
The grounds of the application were summarised in the applicant’s written submissions as being:
The RRT’s finding that the applicant had “lost interest in politics years ago” is flawed in the following respects:
(a) the RRT had no evidence to support the finding, or in the alternative, the finding was so unreasonable that no reasonable Tribunal could have made it;
(b) the RRT failed to comply with its duty under s.425 of the Act, by failing to give the Applicant a meaningful opportunity to give evidence and present arguments relating to the finding;
(c) the RRT failed to take into account relevant considerations in making the finding; and
(d) the RRT failed to ask itself the right question, by failing to consider whether the Applicant faced a real chance of persecution by reason of his political opinions should he return to Bangladesh.
The applicant did not press the second ground appearing in his amended application, which raised issues concerning s.424A of the Act.
It has to be kept in mind that the significance of the Tribunal’s finding that the applicant was no longer interested in politics was relevant only to his claims that he would re-involve himself in politics in the event of a return to Bangladesh. It is to be observed that the applicant does not challenge the Tribunal’s findings that events preceding his departure from Bangladesh for Australia did not justify a well-founded fear of persecution for a Convention reason.
The applicant submitted that the Tribunal’s finding that the applicant had lost interest in politics years ago was based on the following findings of fact:
a)it did not accept that the applicant was still a member of the central committee of the Jubo League;
b)it considered that the applicant showed “no evidence of any real ongoing interest in the life of the Jubo League, let alone of its governing body and operations”;
c)it could find no evidence that the 2006 conference of the Awami League and/or the Jubo League was yet to be held and “the applicant was himself not able to specify when it was being held beyond citing the year 2006”;
d)it considered the applicant “displayed no evidence of any interest in the matters to be dealt with at that conference”; and
e)it considered the applicant had demonstrated “negligible interest in and detailed knowledge of the party’s operations in his absence”.
The applicant submitted that, should any of these findings be tainted with any of the breaches alleged in the amended application and set out above at [10], then jurisdictional error will have been established.
Dealing in turn with each of the grounds which were pressed:
The RRT had no evidence to support the finding that the applicant had lost interest in politics years ago, or in the alternative, the finding was so unreasonable that no reasonable Tribunal could have made it
In respect of his submission that there was no evidence to ground the Tribunal’s impugned conclusion, the applicant argues that:
a)the possible expiry of his membership of the Jubo League central committee was not probative of a lack of interest in that body;
b)the letter from the Bangladesh Awami League, Australia (Inc) reproduced at CB 343, which says that the applicant had become an executive member of the Australian branch of the League, contradicted the finding that the applicant showed no evidence of real ongoing interest in the life of the Jubo League;
c)the Tribunal’s statement that the applicant was not able to specify when the Jubo League national conference was being held was made without the applicant ever being asked by the Tribunal when it was to be held;
d)the Tribunal’s finding that the applicant displayed no evidence of any interest in the matters to be dealt with at the conference did not provide a rational basis for a conclusion that he had lost interest in politics because it was not known whether such a conference had been held or would be held in the near future; and
e)the Tribunal’s finding that the applicant had demonstrated “negligible interest in a detailed knowledge of the party’s operations in his absence” was not adequately supported by the evidence.
The proliferation of individual elements of attack on the Tribunal’s factual finding only serves to emphasise the reality of what the challenge is, namely a challenge to a finding of fact which is a matter properly within the province of the Tribunal. Moreover, to selectively isolate aspects of the evidence before the Tribunal to argue that they do not support a particular finding ignores the other evidence before the Tribunal which could and did support the Tribunal’s conclusion.
The applicant is correct when he says that he was never asked when the next national conference of the Jubo League was to be held and, thus, the Tribunal’s statement that he said “2006” (CB 402) was incorrect. Even so, the reality that the Tribunal made an incorrect finding of fact namely that:
The Applicant was himself not able to specify when [the 2006 national conference of the Awami League and/or Jubo League] was being held beyond citing the year “2006” (CB 409)
does not vitiate the Tribunal’s ultimate finding of fact. An error of fact within jurisdiction, as this was, does not amount to jurisdictional error.
Further, the five findings of fact particularised by the applicant in his written submissions set out above at [16], do not represent all the evidence which was before the Tribunal. The first respondent in his written submissions set out a number of factual matters which give an adequate foundation to the Tribunal’s finding that the applicant had lost interest in politics. These are:
6.The Tribunal noted that in the course of the hearing the applicant, among other things:
(i)“appeared vague” in response to questions as to how the Central Committee of the Jubo League operated with him having been absent from it practically since the time he was elected to it (CB 401);
(ii)did not give the impression of having taken any detailed interest in how the party ran without him let alone any detailed interest in the circumstances of those colleagues who were similarly placed in the Central Committee and who had not left Bangladesh (CB 402);
(iii)…
(iv)provided no evidence of having had any involvement, interaction or interest in re-nominating in absentia for the position that he claimed to have been able to hold in absentia (CB 402);
(v)provided no evidence of having continued to put any work into the organisation since the month in which he was elected to the Central Committee, namely February 2003 (CB 402);
(vi)…
(vii)agreed with the Tribunal’s summary of the incident in January 2003, on which he relied as evidence of persecution, that the police knew he had some responsibility for the demonstration, arrested him, lost him and could not legitimately charge him and were not even motivated to charge him illegitimately. He then implicitly agreed with the Tribunal’s inference from this evidence that he did not face any difficulty with the authorities in relation to this event (but added that if he returned to Bangladesh he would demonstrate again and then would be arrested) (CB 402).
The applicant submitted that the Tribunal’s conclusion is contradicted by a number of matters which he set out in his submissions. However, it is for the Tribunal to determine which facts it relies upon in reaching its conclusion and the fact that there is evidence before it which might have led it to a different conclusion does not mean that it erred by arriving at the conclusion it did reach.
The applicant also submitted that the Tribunal’s conclusion that the applicant had “lost interest in politics years ago” was based on inferences which were not open to it on the evidence. This submission has not been made out because, on the contrary, the evidence did support such an inference. Again, although a different inference might have been drawn by a differently constituted Tribunal, that does not mean that the Tribunal erred in law by drawing the inference it did.
In any event, a “no evidence” submission is inappropriate in inquisitorial proceedings such as these where the conclusion of the Tribunal is based upon the material submitted to it by the applicant himself. In similar circumstances the following comments were made by Driver FM which enjoyed the approval of the Full Court of the Federal Court in WAJS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 139 at [13]:
The evidence before the presiding member which led to the adverse findings on credibility was the applicant’s own account. The presiding member found the applicant’s account to be implausible and illogical. The presiding member did not require other evidence to support her rejection of the applicant’s evidence. She had to satisfy herself, or not, on the basis of the material put before her. It is up to an applicant to satisfy the decision maker that he or she faced persecution. If an applicant presents evidence and it is rationally rejected by the decision maker, the applicant can hardly complain that there was no evidence supporting the rejection. There plainly was evidence, being the evidence presented by the applicant himself. Provided that the presiding member approached the consideration of the applicant’s evidence in a rational and logical manner, which, in my view, she did, the applicant cannot found a judicial review application on a no evidence ground, or on the third limb of the rules of procedural fairness, if it exists in Australia.
Consequently, jurisdictional error is not demonstrated in respect of this asserted ground of review.
The Tribunal decision was illogical and unreasonable
The applicant submitted that the Tribunal’s findings regarding his lack of continuing interest in politics were illogical and unreasonable. The applicant submits that the Tribunal founded its conclusions regarding the applicant’s lack of ongoing interest in the Jubo League upon a cursory questioning of the applicant, limited to the issue of who would be undertaking the applicant’s responsibilities in his absence.
The applicant submits that as the Tribunal accepted that he had been elected to a three year term on the Jubo League committee in January 2003 it was illogical and unreasonable for it to hold that he had lost all interest in politics years ago and relied on what Lee J said in Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 at [87]:
The reasons of the Tribunal suggest that the Tribunal relied upon a suspicion or impression it formed and that it did not, as required, undertake a rational examination of the material before it to ascertain whether its instinctive conclusion was supported by that examination.
In Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12, Gummow and Hayne JJ said at 20 – 21 [38], Gleeson CJ agreeing at 13 [1]:
The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error. (footnotes omitted).
In SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995, Madgwick J discussed the body of authority on the question of illogicality and, after referring to SGLB, arrived at the following conclusion at [57]:
Thus it seems to me that the position arrived at in the High Court may be summarized in the following way:
1. A ‘no evidence’ attack will only suffice as such if it can be said that there is an actual ‘absence of any foundation in fact for the fulfilment of the conditions upon which, in law, the existence of a power depends’, that is, if there is no evidence to support a finding of a jurisdictional fact.
2. Nevertheless, there are constitutional minimum standards of judicial review and the powers of decision-makers such as the Tribunal are not to be exercised capriciously – not ‘according to humour’, but according to law.
3. It is a critical legal requirement that the determination should not be able to be characterized as ‘irrational, illogical and not based on findings or inferences of fact supported by logical grounds’. My own shorthand paraphrase of this is that, in that minimal sense, the determination must be a rational one.
4. If that critical legal requirement is not met, there will be jurisdictional error sufficient to warrant the issue of a constitutional writ.
Looking at the material which was before the Tribunal and referred to above at [6] and [9] it can be identified that there was a rational basis for the conclusion that the applicant had lost interest in politics. Consequently its factual finding was open to it with the result that no jurisdictional error is disclosed by this asserted ground of review.
The RRT failed to comply with its duty under s.425 of the Act, by failing to give the Applicant a meaningful opportunity to give evidence and present arguments relating to the finding
In relation to the alleged failure to comply with s.425 the applicant identifies the following as the issues which should have been brought to the applicant’s attention:
(a) whether the Applicant continued to be a member of the Central Committee, having regard to the Applicant’s evidence that he was elected for a three-year term (CB 409.6);
(b) whether the Applicant sought to be re-elected in absentia, or had undertaken other activities to make re-election possible (CB 409.7);
(c) whether the Applicant generally had any evidence of a real ongoing interest in the life of the Jubo League (CB 409.7);
(d) whether the Applicant had any knowledge of matters to be dealt with at the national conference of the Awami League or the Awami Jubo League (CB 409.8);
(e) assuming the Applicant’s membership in the committee had expired, whether the Applicant could or could have been re-elected to the committee if he returned to Bangladesh (CB 411.6).
The first thing to be said about these matters is that their proper characterisation would be as matters of evidence relevant to the finding in question, namely that the applicant had “lost interest in politics years ago”, rather than as issues in their own right.
The second thing to be said is that whether the “applicant lost interest in politics years ago” is not an issue but a conclusion. As such, it is not something which s.425 required be identified to the applicant: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [48].
Thirdly, the real issue relevant to this asserted ground of review is whether the applicant:
… would throw himself into politics in the event of return to Bangladesh as claimed as recently as in his 30 October 2006 submission. (CB 411)
because it is the applicant’s continuing interest in politics which is the issue which is relevant to the question of whether he could safely return to Bangladesh. In respect of this issue the Tribunal said this:
On the evidence before it the Tribunal is not satisfied that the applicant’s lack of involvement in politics in Bangladesh would be due to any modification of behaviour on his part in order to avoid persecution. The Tribunal finds on the evidence before it that the applicant simply lost interest in politics years ago. (CB 411)
Clearly, the relevant issue is not whether the applicant had lost interest in politics but what his behaviour would be upon his return to Bangladesh. In this regard, the Tribunal said that it did not accept the applicant’s evidence that he would throw himself back into politics.
The question of whether the applicant was given a real and meaningful invitation to give evidence and present arguments relating to the issue in question must be answered in the affirmative. The issue of the applicant’s likely political activism were he to return to Bangladesh was raised by him prior to the Tribunal hearing of 18 September 2006 by way of his agent’s written submission to the Tribunal dated 11 September 2006 which, amongst other things, said:
If forced to return to Bangladesh [the applicant] fears that he would be at serious risk of being arrested and detained and harmed because of his political opinions. As recent country information demonstrates the situation has not only not changed but in fact has deteriorated for a person like [the applicant] who has a profile as a political activist / dissident / opponent of the BNP / Jamaat-e-Islami. With elections looming in Bangladesh the chance that [the applicant] would be exposed to violence will increase, especially as he would, if he hadn’t already been detained, continue to be politically active with the Awami Jubo League. That is, if he attempted to lead a life according to his beliefs his safety and liberty would be placed in serious jeopardy as he would be at real risk of being detained and persecuted. (CB 326)
The fact that this issue was then canvassed at the Tribunal hearing can be seen from the final sentence in the second full paragraph on page 10 of the Tribunal’s decision. That reference reflects evidence given by the applicant at the Tribunal hearing and can be seen at page 16 of the transcript annexed to the affidavit of Genevieve Delia Harris affirmed 4 December 2006. Moreover, the applicant was provided an opportunity to file further submissions after the hearing and he took advantage of that opportuity. In subsequent written submissions dated 29 September 2006 the applicant’s agent said:
He has claimed that he would again be politically active in Bangladesh and that he would again publicly agitate for change and reform and would again demonstrate, protest and rally to support the Awami League and Awami Jubo League. [The applicant] sincerely claims that it is his nature to act in such a way. He has been this way for nearly 40 years and would be unable to not act according to his beliefs and ideals. He is a political activist. To return to Bangladesh means he would be at real risk of being seriously harmed because of his political opinions. (CB 333)
In a statutory declaration enclosed with those written submissions the applicant said:
If I was to return I would again be involved with the Awami Jubo League. I would again be an activist for political reform and democracy. I would again organise and participate in rallies and demonstrations against the corruption and violence perpetrated by the government. It is in my nature to be politically active and to agitate for change in such an environment. (CB 337)
In his facsimile submission of 30 October 2006 to the Tribunal the applicant’s adviser said:
We submit that, were [the applicant] to return to Bangladesh in the immediate future and actively participate in the political process, as he has stated he would, there is a real chance that he would be seriously harmed because of his political opinion. (CB 390)
It is apparent that the Tribunal discharged its s.425 obligations in respect of the issue of whether the applicant would be at risk in Bangladesh because of the political activism in which he might engage were he to return. The applicant addressed the issue either by submissions or evidence on four separate occasions including one prior to the hearing as well as at the hearing. No jurisdictional error has been demonstrated with respect to this asserted ground of review.
The RRT failed to take into account relevant considerations in making the finding
The applicant submits that the absence of any reference in the Tribunal’s decision to the applicant’s participation in the activities of the Australian branch of the Awami League referred to above at [8] demonstrates that it failed to consider relevant evidence.
In this case, the Tribunal’s concern was not with the applicant’s conduct in Australia but with his likely conduct in Bangladesh upon his return in circumstances where he had claimed that if he returned to his country he would be engaged in politics again. Any involvement in the Awami League in Australia could be of little, if any, relevance to that issue. As was said by the High Court in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what as occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
In considering what the applicant was likely to do on a return to Bangladesh the Tribunal, unsurprisingly, focussed its attentions on what he had done in Bangladesh in the past.
The fact that the Tribunal did not refer to the Bangladesh Awami League, Australia (Inc) letter reproduced at CB 343 does not indicate that it had not been taken into consideration, simply that it was not relied upon by the Tribunal in reaching its decision: WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630.
Moreover, the applicant’s unparticularized participation in an Australian executive committee, with no detail given as to what activities or involvement this entailed, if any, did not amount to evidence which had to be expressly rejected before the Tribunal could come to a conclusion on the applicant’s likely conduct upon a return to Bangladesh.
The RRT failed to ask itself the right question, by failing to consider whether the Applicant faced a real chance of persecution by reason of his political opinions should he return to Bangladesh
The applicant submits that the Tribunal created a false dichotomy between “persons who continued to be actively involved in the political process in Bangladesh and persons who do not” as the criterion for determining whether the applicant had a well-founded fear of persecution by reason of his political opinion as an Awami League supporter. The applicant notes the Tribunal’s conclusion at CB 411:
The Tribunal is not satisfied that the reports of attacks on currently active AL figures is evidence that the Applicant would in any way be similarly treated, notwithstanding his past profile, by supporters of opposing political parties or by the authorities of Bangladesh, whether working together or separately. Again the Tribunal places weight on the significant distinction drawn by the Applicant himself between persons who continue to be actively involved in the political process in Bangladesh and person [sic] who do not.
Clearly the applicant had identified, as was noted by the Tribunal, that activists were the persons likely to be targeted for persecution, but the distinction between activists and non-activists which was noted by the Tribunal is not a dichotomy as was argued by the applicant. The distinction between the two groups should be seen as the method used by the applicant to highlight the danger he said he faced on return to Bangladesh because he classified himself as an activist. In his statutory declaration of 29 September 2006 the applicant said this at paragraph 14:
It is because of my profile and activism that I would be targeted. Of course not all members and staff of the Awami League and the Jubo League are targeted, but certainly activists who are publicly active and seen to be opposed to the government in favour of an opposition party are targeted. To be a leader and active participant or an organiser of a demonstration or protest or rally which in someway is against the government is to place your safety and liberty at serious risk. (CB 337).
Other evidence and submissions of the applicant underscoring the risks he said he faced because of his activism are quoted above at [35] and [36].
Consequently, to say that there was a dichotomy between activists and non-activists and that this was the basis of the Tribunal’s decision is to ignore the fact that the applicant based his claim on the activism he said he would inevitably pursue were he to return to Bangladesh.
In his written submissions the applicant relies on what the High Court said in NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 in relation to the classification of people into groups which have a real chance of persecution and groups which do not. The applicant’s submission seeks to erect in the Tribunal’s decision a distinction which is not there. He says at paragraph 47:
These statements support the conclusion that activists who are publicly active are targeted, in circumstances where the statements were made to support the Applicant’s claim that he would be targeted because of his activism. However, such evidence does not, by itself, support a finding that all people who do not fall into the category of “activists who are publicly active and seen to be opposed to the government and in favour of an opposition party” would not be targeted.
In noting the distinction identified by the applicant between people who are politically active and those who are not, the Tribunal merely addressed itself to the question which it had to answer, namely whether the applicant had a well-founded fear of persecution for a Convention reason. Its decision did not turn on an assumption that the postulated category of persons who were not politically active was free of persecution and, if the applicant was to fall within that category, he would therefore not have a well-founded fear of persecution were he to return to Bangladesh. Rather, it identified the claims made by the applicant in the form in which they were made and rejected them. By rejecting the claim it did not, implicitly, place the applicant into some separate category of persons who did not fear persecution. It simply rejected the claims as made.
Given that the Tribunal had concluded that the applicant’s activities in Bangladesh up to the time of his departure for Australia did not justify a well-founded fear of persecution for a Convention reason, there was no basis to conclude, if he were not to be an activist upon his return to Bangladesh, which is what the Tribunal found would occur, that there would be any reason for him to fear persecution upon return to Bangladesh. It was not a question of a dichotomy but whether the applicant was a person who had anything to fear. If he had nothing to fear before and would do nothing in the future to generate such fear, then he did not meet the criteria for a protection visa.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 13 September 2007
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