SZDSI v Minister for Immigration - [2005] FMCA 1705

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDSI v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1705

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution Bangladesh for reason of his political opinion or imputed political opinion as student member of Jatiya Party – applicant claims RRT ignored evidence of persecution by opposition activists.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; 483A

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044

Applicant:

SZDSI

First Respondent:

MINISTER FOR IMMIGRATION & MULTICILTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1637 of 2004

Judgment of:

Emmett FM

Hearing date:

25 October 2005

Date of Last Submission:

25 October 2005

Delivered at:

Sydney

Delivered on:

23 November 2005

REPRESENTATION

Counsel for the Applicant:

Mr R. Killalea

Counsel for the Respondent:

Mr G. Johnson

Solicitors for the Respondent:

Ms B. Eales, Australian Government Solicitor

ORDERS

That the applications before this Court are dismissed.
That the Applicant pay the Respondent’s costs in an amount of $6157.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1637 of 2004

SZDSI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483A of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.
The Applicant claims to be a Bangladeshi national who arrived in Australia on 17 January 1993.
On 25 June 2003, the Applicant lodged an application for a protection visa with the Department of Immigration and Ethnic Affairs (“the Department”) under the Act prior to amendments that became operative on 1 September 1994.
The Applicant claimed to fear persecution from the Bangladeshi authorities by reason of his political opinion or imputed political opinion arising from his association with the Jatiya Party whilst under the leadership of Ershad between 1984 and 1986.
On 27 October 1993, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 18 November 1993, the Applicant filed an application for review before the Tribunal. On 29 April 1996, the Tribunal affirmed the decision of the Delegate to refuse a protection visa.
On 31 May 2004, the Applicant filed an Application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Refugees Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

The Tribunal proceeding

The Applicant claimed, whilst at university in Bangladesh in Dhaka, to be a member of the student wing of the Jatiya Party (“NBSS”) between 1984 and 1986. In 1986 the NBSS became inactive upon campus and was abolished in 1988.
The Applicant claimed that he was unable to finish a Master of Laws degree because of fear of persecution by the opponents of his political party. The Applicant claimed to be General Secretary of the NBSS. The Applicant stated that this role sometimes involved campaigns to destabilise opposition parties, especially the Bangladeshi National Party (“BNP”) and Awami League. The Applicant stated that he addressed student rallies regularly, liaised with senior party officials, signed branch documents, mobilised student support, controlled articles for student publications and organised demonstrations and political rallies on and off campus.
When Ershed resigned in December 1990, the Applicant claimed that his supporters were vilified, especially those that had been prominent in student branches.
Following Ershed’s resignation, the Applicant left for Cyprus in February 1991. However, he claimed that he remained a target of the BNP and of the Awami League and for that reason did not want to return to Bangladesh. He stated that, after the NBSS was outlawed after Ershed resigned, he was detained and beaten by police on 2 occasions.
The Applicant returned to Bangladesh in October 1991.
The Applicant claimed that, in March 1992, there was a fight between 2 students who were members of opposing political parties. One student, Ovee, was a member of the NBSS and was a friend of the Applicant. The other student was a member of the BNP student union. During the incident 2 supporters of the BNP were killed. The Applicant claimed that 6 people were blamed for the incident, including Ovee and the Applicant. Ovee was sentenced to 10 years jail and the Applicant claimed that he escaped the sentence because he fled Bangladesh in May 1992, although he returned a second time for one month to obtain his visa.
The Applicant claimed that a murder case against him had been decided in his absence and he had been sentenced to 10 years jail. The Tribunal stated that it put to the Applicant that punishment for a crime is not persecution. The Applicant responded that he was acting under government orders. The Tribunal pointed out to him that the incident occurred in 1992 when he could not have been under such orders. The Applicant replied that it was connected to his position as Secretary-General of the student wing.
The Applicant claimed that he did not complete his Master of Laws degree because he took only 2 of the 3 exams required. He stated that his final exam on 16 April 1992 was not attended by him because he believed the opposition party had learnt that he would be present at the exam and he believed some of the members would attack him. He claimed that his teachers were not prepared to guarantee his safety and consequently he was not willing to risk his security.
The Applicant then left Bangladesh in May 1992 and returned to Cyprus, where he resumed his studies until December 1992.
In support of this claim, the Applicant provided 2 letters to the Tribunal relating to attacks on him. One letter, dated 18 November 1993, purported to be from the Chairman of the Department of Law at Dhaka University. The letter mentioned physical attacks on the Applicant resulting in his hospitalisation. The letter stated that, after the Applicant returned to Bangladesh from Cyprus to do his exam in the Master of Laws degree, the Applicant was “attacked by some unidentified terrorists at the exam hall.” The letter stated that the Applicant’s personal security was at risk and he was still being sought by terrorists who wanted to know his whereabouts. The second letter purported to be from the Bangladesh Law Association and was undated. However, the letter noted that the Applicant was actively associated with the Jatiya Party during the time Ershed was leader and that when he returned from Cyprus he went underground to prepare for his exams. However, when his presence on campus became known, a number of terrorists attacked him at the campus of the University. The letter stated that terrorism had become so common that the authorities would not be able to protect the Applicant.
The Tribunal noted that, between 1987 and 1990, the Applicant was able to concentrate on his law studies, complete his undergraduate degree and restrict his political activities. The Tribunal noted that the Applicant did not suggest that he was under further threat from other student groups during this period. It was not until after the fall of Ershed in November 1990, that the Applicant felt his security and safety were at risk. After Ershed’s arrest in November 1990, the BNP were elected to power, in February 1991, by a small majority and have continued as the ruling party in Bangladesh, at least, until the date of the Tribunal’s decision.
The Tribunal accepted the Applicant’s claim that he was fearful of his own security after Ershed fell. However, the Tribunal noted that the Applicant remained in Cyprus for only one semester following which he returned to Bangladesh to commence his Master of Laws degree. The Tribunal found:
“The circumstances preventing him from completing the exam in April 1992 are not explained in detail by the Applicant. He has said that he somehow learnt that he would be attacked by political opponents if he went to the exam but he has not indicated why it was likely he would be attacked or what had provoked the possible attack. What he has said was that the faculty of law could not guarantee his safety and therefore he decided not to appear for the exam.
Given the Applicant said that he maintained a low profile on campus after 1986 when he was physically assaulted and had also spent time away from Bangladesh in Cyprus, the Tribunal cannot see how he may be vulnerable to student attack in April 1992. But, allowing for the possibility that he was a target for rival student groups, there is no explanation of what he has done or said to provoke such an attack.”
The Tribunal went on to note the Applicant’s account of the incident in March/April 1992 involving 2 student rivals, including the person he supported, Ovee. The Tribunal noted that the Applicant did not explain clearly what involvement he had, save that he was assisting Ovee. The Tribunal noted that the Applicant stated that he did not know what subsequently happened and he was not charged. However, the Tribunal noted that the Applicant gave a different version of the incident to the Department saying that he escaped sentencing because he left Bangladesh. The Tribunal was prepared to accept that a clash occurred, but that due to the contradictory nature of the Applicant’s claims in respect of the consequences, the Tribunal was not prepared to accept the Applicant’s evidence of his role in the clash and the consequences.
The Tribunal noted that, even if it accepted that the Applicant may have been charged following this clash, it was not satisfied that the Applicant faced persecution within the meaning of the Convention. The Tribunal noted that the Applicant stated that the clash occurred through personal antagonism between Ovee and another. This caused the Tribunal to find that the Applicant’s involvement in the incident did not have any connection to his political activities or his support of the Jatiya Party.
The Tribunal noted that the Applicant also raised the possibility that he was wanted on charges of possessing firearms. The Applicant had claimed that the charges relating to his possession of firearms dated back to 1986 and were false. However, the Tribunal noted that these charges have never been acted upon, even though the Applicant continued to study in Bangladesh between 1986 and 1991.
The Tribunal noted that the Applicant claimed that, following the fall of Ershed, he was concerned that he may be subjected to arrest. However, the Tribunal noted that the Applicant was able to return on 2 occasions from Cyprus, following Ershed’s fall, and was never approached by police. Further, the Applicant acknowledged that he had not seen documents relating to those charges or to possible arrest. For those reasons the Tribunal concluded that the police had no intention of bringing any charges against the Applicant.
In relation to the Applicant’s claims that he feared personal assault when taking his exams in April 1992, the Tribunal found that the Applicant had not “indicated what was the basis for his suspicion that he would be attacked if he went to the exams. Nor has he said who was seeking to attack him.” The Tribunal found, that since the end of 1986, the Applicant had not taken an active role in supporting the Jatiya Party on campus and therefore the chance of him being targeted by student groups is remote. The Tribunal found that, from 1986 onwards, the NBSS had no profile on the campus.
The Tribunal went on to consider whether the Applicant would face a real chance of persecution if he returned to Bangladesh. The Tribunal had regard to independent country information that caused the Tribunal to find that the Applicant would not be directly affected if he were to return to Bangladesh, noting that he was part of a student group that supported the Jatiya Party through NBSS between 1984 and 1986. The Tribunal found that his involvement in politics after 1986 was greatly reduced. The Tribunal further found that the independent country information before it did not suggest that former Ershed supporters are the focus of attention of other political parties.
In reliance on its findings referred to above, the Tribunal concluded that he did not consider that the Applicant faced a real chance of persecution at the time he left Bangladesh in early 1993. The Tribunal summarised its reasons for that conclusion as the Applicant’s ability to resume his law studies when he returned to Bangladesh from Cyprus in October 1991.
Accordingly, the Tribunal was not satisfied that the Applicant would face a real chance of serious harm if he were to return to Bangladesh and, therefore, found that he does not have a well founded fear of persecution within the Convention meaning.

The proceeding in this Court

Pursuant to Short Minutes of Order made on 22 September 2004, the Applicant filed an amended application on 8 February 2005.
On 19 April 2005, the Applicant filed, with consent of the First Respondent, a further amended application with full particulars and claiming relief on the following grounds:
“1. The decision under review was made in breach of the requirements or procedural fairness for reason that the RRT failed to give the Applicant the opportunity to comment on material adverse to his claim
2. The decision under review was made in breach of the requirements of procedural fairness for reason that the RRT failed to take a relevant consideration into account
3. The RRT failed, or constructively failed, to exercise, or to attain, jurisdiction for reason that RRT failed to apply the law to the facts before it
4. The RRT failed, or constructively failed, to exercise, or to attain, jurisdiction for reason that the RRT failed to address the question before it”
The Applicant was represented by Counsel before this Court and relied on grounds 2, 3 and 4 only of the further amended application filed on 19 April 2005.
The Applicant’s complaint arises out of the Tribunal’s finding that the Applicant had not “indicated what was the basis for his suspicion that he would be attacked if he went to the exams. Nor has he said who was seeking to attack him.” The Applicant claims that there are references in the transcript that are inconsistent with that finding.
At the hearing before this Court, the Applicant referred to parts of the transcript which he contends show that the Tribunal Member did have evidence for the basis of the Applicant’s suspicion that he would be attacked if he went to the exams in 1992 and also evidence of who was attacking him.
The Applicant referred to 3 particular pieces of evidence:
i)The transcript reflects that the Applicant stated, through the interpreter, that “the opposition party, they came to know that I am appearing in the final exam or I’m about to and at that time my teachers and other people couldn’t guarantee my security on the campus.”
ii)The Applicant further stated in his oral evidence that he was a “trademark with the opponents”, confirming that by opponents he meant political opponents.
iii)The Applicant also sought to identify the people he feared in relation to his exam as those people who were “involved in my opposition and those who identified me as a supporter of Jatiya Party, they’re now in power and they know me very well.”
The Tribunal went on to say:
“Yes, I understand but you see what I am talking about is in the campus of the university or within the university we’re talking about a much tinier group, as it were. I mean you’re a known identity in the university because you were a political activist. You are part of an organisation that was obviously disliked intensely and therefore I can understand yes there would be political enemies of yours amongst the student population. But my question is if you were to go back to Bangladesh and you were to go to say a different part of the country, one that perhaps not even to Dhaka, somewhere else and just to settle there and to live there, then what would be the risk to you of your political enemies doing anything to you.”
The Applicant submits that these words by the Tribunal member indicate that the Tribunal accepted that the Applicant had political opponents. However, it is my view that, a fair reading of the transcript, in context, makes it clear that the Tribunal member was referring to the student population and the position of the Applicant in that group.
The Tribunal plainly considered in some detail the Applicant’s claims relating to the circumstances surrounding his failure to attend the exam based on his fear of attack. It concluded that the Applicant had not indicated what the basis was for his suspicion that he would be attacked if he went to the exams. It also concluded that he had not identified those who would be seeking to attack him. Those findings are in the context of the findings of the Tribunal that, since the end of 1986, the Applicant had not taken an active role in supporting the Jatiya Party on campus and that he had spent time in Cyprus before coming back in April 1992 to commence his Master of Laws exam. Soon after he returned to Dhaka, the clash involving Ovee occurred. However, the Tribunal found that the clash was the result of antagonism between Ovee and another student activist, and any involvement of the Applicant in the incident was not because of any persecution for a Convention related reason.
The Tribunal is obliged to identify the claims made by the Applicant and to consider them and make findings. Based on those findings the Tribunal is obliged to apply the relevant law in considering whether or not it is satisfied that, pursuant to ss.36 and 65 of the Act, the Applicant has met the necessary criteria to be entitled to a protection visa by reason of being a refugee.
What was critical to the finding of the Tribunal, was that the Tribunal did not accept that the Applicant would be directly affected as a result of his early political history, if he were to return to Bangladesh, given that his support of the Jatiya Party through the NBSS had been greatly reduced after 1986 and that the independent country information before the Tribunal did not suggest that former Ershed supporters are the focus of attention by other political parties. The Tribunal found that the Applicant would not face a real chance of serious harm if he were to return to Bangladesh as a result of his political affiliation with the Jatiya Party whilst attending Dhaka University in the later half of the 1980’s and early 1990’s.

The Applicant, through his Counsel, conceded that wrong findings of fact by the Tribunal do not necessarily amount to jurisdictional error. However, a fair reading of the decision shows that the Tribunal indeed considered the claims of the Applicant in relation to his concern about the exams, and accepted that the Applicant was fearful and may have suffered attacks in the past because of his support of Ershed and as a member of NBSS.
The Tribunal did not accept that the Applicant’s claim of fear from political opponents at the time of his exams was well founded. The Applicant does not specify the basis for his suspicion other than to assert that he feared his political opponents. The Tribunal was not satisfied as to why the opponents would still be interested in him. It is for the Applicant to satisfy the Tribunal that the criteria in ss.36 and 65 of the Act are met.
It was open to the Tribunal, on the material before it, to make the findings of facts it did. Indeed, I am not persuaded that the findings of fact it made in respect of the incident surrounding the exams were wrong, let alone whether such an error was capable of amounting to jurisdictional error. The Tribunal decision is not to be read with an eye keenly attuned to error, rather, it is to be given a fair reading taken as a whole. (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271; Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]).
Given that grounds 2, 3 and 4 are all based on the same particular, and having regard to the findings in these reasons with respect to that particular, grounds 2, 3 and 4 are not made out.
Accordingly, the decision of the Tribunal is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The applications before this Court are dismissed with costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 10 November 2005