SZEES v Minister for Immigration - [2006] FMCA 272

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEES v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 272

MIGRATION – Review of Refugee Review Tribunal decision – consideration of all integers of the applicant’s claim – persecution – consideration of all country information – credibility – no jurisdictional error – application dismissed.

Migration Act 1958, s.424

SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
Lie v Refugee Review Tribunal (2002) 190 ALR 601
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 152

Applicant:

SZEES

Respondents:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR

File Number:

SYG2549 of 2004

Judgment of:

Mowbray FM

Heard in:

Sydney

Hearing dates:

11 March & 15 March 2005

Delivered at:

Canberra

Delivered on:

28 February 2006

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Solicitors for the Applicant:

Nil

Counsel for the First Respondent:

Mr A McInerney

Solicitors for the First Respondent:

Sparke Helmore Lawyers

ORDERS

The Refugee Review Tribunal be joined as a party to these proceedings.
The application be dismissed.
The applicant pay the first respondent’s costs and disbursements fixed in the sum of $6,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2549 of 2004

SZEES

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision of the Refugee Review Tribunal made on 31 July 2000 and handed down on 15 August 2000 affirming a decision of a delegate of the first respondent to refuse to grant the applicant a protection visa.
Consistent with SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, I join the Tribunal as a party to these proceedings. Any reference to the respondent in these reasons is to the Minister, the first respondent.

Background

The applicant is a citizen of Bangladesh. He arrived in Australia on

7 September 1996. In October 1996 he applied for a protection visa. That application was withdrawn on 3 February 1997. On 16 November 1998 he again applied for a protection visa. On 19 February 1999 a delegate of the respondent refused that application and on 9 March 1999 the applicant applied to the Tribunal for review of that decision. As indicated above the Tribunal rejected his application on 15 August 2000. He sought judicial review on 16 August 2004.
The applicant was previously a party to the Lie v Refugee Review Tribunal (2002) 190 ALR 601 class action in the High Court of Australia. That proceeding, insofar as it concerned the applicant, was remitted to the Federal Court of Australia by order of Gaudron J made on 25 November 2002. That application was subsequently dismissed by Emmett J on 20 February 2004.

Claims before the Department and Tribunal

The applicant claims to come from a political family in Bangladesh –his father and elder brother were involved in the war against Pakistan in 1971. As a result of their political activity their homes were burnt and looted and their family tortured by local Razaker and Pakistani military. Later his brother was jailed by the Mujib government and their family tortured by the Awami League.
He claims that as a college student he became vice-president of the student wing of the Bangladesh Nationalist Party (BNP). After graduation he joined a BNP branch and led gatherings and meetings and was elected joint secretary of the BNP branch in Dhanmondi in 1987.
The applicant further claims that from 1991 when the BNP came to power, till their leader Khaleda Zia resigned, he was targeted by a rival party, the Awami League. As a result of his support for the next BNP candidate in the 1996 elections, Colonel Ali, he was again targeted by Awami League members.
When the BNP lost that election Awami League members started “taking revenge” on opposition members and leaders. False charges were filed against him with a view to throwing him in gaol.
The applicant further claimed that Awami League activists in his home town of Jhenadi had gone to his home twice with the intention of attacking him. When they were unable to locate him they attacked his family instead. He claimed the reason for the attacks was his work for the BNP when at college. At the Tribunal hearing it was put to him that it seemed unlikely that he would be targeted for that sort of work which was also undertaken more than ten years ago. In reply the applicant said that he was active in spreading BNP propaganda when he visited Jhenadi.
On 15 July 1996 the applicant was attacked by Awami League activists with sticks and batons while passing Mirpur zoo. He alleges that they had lain in wait for him and bashed him. He was admitted to hospital for a few weeks as a result of the attack.
The applicant realized he was not safe in Bangladesh. He fears persecution and says that the false cases against him are still pending. He cites the Awami League’s policies which oppress BNP leaders and workers and their misuse of the Special Powers Act to arrest BNP members.

Tribunal decision

The Tribunal had before it the Department’s file, written submissions from the applicant’s migration adviser and oral evidence given by the applicant at the hearing on 4 July 2000.
The Tribunal found that the applicant’s evidence lacked credibility both in terms of plausibility and because of claims unsupported by independent evidence. Therefore, it was not satisfied that he had a well-founded fear of persecution for a Convention reason.
The applicant claimed before the Tribunal that he could not return to Bangladesh because the Awami League had embarked upon a campaign to wipe out the BNP as a political force by arresting and killing opposition members. The Tribunal found that this lacked credibility. It noted that the BNP enjoys a robust opposition role in and outside Parliament at all levels.
The Tribunal accepted that political activity in Bangladesh did sometimes involve violence and that such violence can be severe. However, it did not accept that the violence experienced by some BNP members at the hands of the Awami League or the police meant that the BNP is a persecuted party.
The Tribunal noted that BNP members are not at risk simply for holding or expressing anti-government views. Rather some activists run the risk of being harmed by participating in political activities such as rallies and demonstrations which have the propensity to turn violent.
The Tribunal accepted that the BNP is strong, fierce, highly organised and prepared to meet violence with violence or initiate violence. However it was not satisfied that the violence that some BNP members experience amounted to persecution for reasons of political opinion.
The Tribunal considered that it was possible for BNP members to freely participate in political activities without participating in activities that are driven by violent confrontation. It was not persuaded that those members who chose to participate in violent attacks are owed protection under the Convention.
The Tribunal found that there was no evidence to support the suggestion that the Bangladeshi authorities permitted harm against BNP members. It noted new legislation which showed that the Government was willing and able to protect people from violence including political violence. The Tribunal acknowledged that violence will still occur as long as the BNP and other opposition parties continue to hold violent hartals.
The applicant claimed that there was no protection for BNP activists in Bangladesh because the law and order authorities act against them on the orders of the Awami League. The Tribunal accepted that there may be random instances where police have acted in a politically biased way against members of the BNP or are pressured not to pursue lawful investigations of crimes linked to Awami League figures. But these were isolated incidents. The independent evidence did not suggest that there was no effective protection from the police for members of the BNP, that the police refused to investigate crimes by the Awami League or that the BNP cannot find justice in Bangladesh from the authorities in general. Nor does it suggest that the BNP is treated in a persecutory manner when its members are confronted by the law.
Having considered all the independent country information and the evidence of the applicant the Tribunal was not satisfied that in general BNP members in Bangladesh faced persecution by reason of their political opinion.
The Tribunal expressed strong doubts that the applicant held the political positions he claimed. It found that he did not have a high degree of political knowledge for someone who held these positions. The Tribunal found his evidence to be vague or simply inaccurate and at page 143 of the Court Book said:
I find it implausible that anyone genuinely interested in politics in Bangladesh, and working in that sphere in a committed fashion, would be unable to give a plain rendition of the events of 1996. It did not escape my attention that several times when the applicant was asked about 1996 he digressed by talking about political events in 1991 and the 1970s, and in doing so left the distinct impression that he wanted to avoid having to answer questions about 1996. This suggested strongly that he wanted to avoid exposing his ignorance of 1996 events, and indeed his answers on 1996, when they eventually came, displayed such ignorance.
The Tribunal found that the applicant was a BNP youth wing worker but not an official of the party or that he had a political profile. At page 143 and 144 of the Court Book the Tribunal found:
Given this, I am not satisfied that he was targeted by rival activists in the manner he suggests. I will give the applicant the benefit of the doubt to have been attacked once by opposition activists, but I am not satisfied that this in itself amounts to persecution given the general level of violence and its random and ubiquitous nature. I consider that any attack on the applicant would not have been Convention-based persecution but part of the constant vendettas being waged between and within the rougher elements of the political scene, as independent evidence suggests occurs.
…
I find it implausible the applicant’s claim that AL activists in his home-town tried to attack him in 1996 over a very minor political role he had there (as a BNP deputy leader at a college) 10 years previously, particularly as his political role in the interim was relatively undistinguished. I am not satisfied that they would have tried to attack him for having publicly espoused BNP beliefs on intermittent visits home. I find that such a claim to be indicative of the applicant’s strategy of exaggerating his political importance.
Given the applicant’s lack of political knowledge and profile, I find it implausible that rival activists would bother victimising him by placing false charges against him; I find a particular lack of credibility in the fact that one of those false charges – the worst, a murder charge – would be laid against such a spent force as a claimed low-level operative of a youth wing of a party in an electorate lost by that party. Given that I am not satisfied that false charges were laid against him, I am not satisfied that he is wanted by police or that he had to go into hiding. I find it implausible that if he was facing a murder charge (whether trumped up or not) the applicant would be able to leave Bangladesh freely. I am not satisfied that he could have engineered a safe exit through airport Customs and security particularly given his own claim that the ruling Government was bent on persecuting him.
Even if I am wrong and false charges were laid against the applicant, I am not satisfied that he is without protection in Bangladesh.
The Tribunal findings have been accurately summarised by Mr McInerney for the respondent:
·it did not accept that the applicant faced persecution in Bangladesh for being a BNP supporter or activist;
·it accepted that the applicant was a low level BNP worker but did not accept that he had a political profile, or that he was, or would be persecuted for that reason by opposition activists;
·it was not satisfied that the applicant was facing false charges brought against him for political reasons;
·in any event, it found that the applicant could obtain protection in Bangladesh in regard to such victimisation;
·it was not satisfied that any harm suffered by the applicant could be termed persecution;
·in any event, it found that the applicant could find protection in Bangladesh because the authorities there were keen to stop such violence;
·it was not satisfied that the applicant’s claim of having worked as a news editor for a newspaper in Australia was credible, or in any event, that the applicant would face persecution in Bangladesh for undertaking such work.
In the result the Tribunal was not satisfied that the applicant has a well-founded fear of persecution under the Convention in Bangladesh.

Consideration

The applicant relies on his further amended application filed on 11 March 2005 in which he asserts three grounds of review:
a)the Tribunal failed to deal with an aspect or integer of his claim – the party worker issue;
b)the Tribunal erred in its assessment of the attacks on the applicant as not amounting to persecution – the Convention based persecution issue; and
c)the Tribunal failed to properly consider all the country information – the country information issue.

Party worker issue

The applicant submits that the Tribunal accepted that he was a BNP youth wing worker and that on one occasion he was attacked by opposition activists. The applicant’s migration adviser had put to the Tribunal that it was unusual for senior leaders of the parties to be persecuted. Those vulnerable to harm were lower-level party workers such as the applicant. In response to these claims the Tribunal found at page 143 of the Court Book:
I will give the applicant the benefit of the doubt over his claim to have been a BNP youth wing worker, but I am not satisfied that he was an official of the party or that he had a political profile. Given this, I am not satisfied that he was targeted by rival activists in the manner he suggests.
It was contended for the applicant that in making this finding the Tribunal failed to address and ignored the adviser’s claim and therefore fell into jurisdictional error. Counsel for the applicant, Mr Zipser, referred to WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 where the Full Federal Court found that the Tribunal failed to consider an integer of the applicant’s claim. At [45] the Full Court said:
If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s.414, to conduct a review of the decision.
But at [47] the Court also said:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
I do not accept that the Tribunal failed to deal with this claim:
·it comprehensively dealt with the general proposition that BNP members faced persecution for political reasons, relying on independent country information;
·it specifically found “implausible that a low-ranking member of the BNP’s youth wing, such as the applicant claims to be, faces persecution and requires protection …”(emphasis added), again with reference to the country information;
·it specifically and comprehensively rejected the possibility that there may be factors particular to the applicant which would cause him to be persecuted even when his party was not.
In my view the Tribunal adequately dealt with this part of the applicant’s claim. The issue was identified and the overall reasons are comprehensive. Furthermore, the adviser’s submission to the Tribunal on this point seems to be no more than an unsupported assertion. No supporting evidence appears to have been adduced by the applicant or his adviser.
This ground must be rejected.

Convention based persecution issue

The applicant contended that the Tribunal found that he had been attacked by opposition activists on one occasion. The applicant says that the attack involved Awami League activists lying in wait for him and then bashing him. The applicant was injured and taken to a clinic for treatment.
The applicant submits that “presumably the Awami League activists bashed him because he was a BNP worker. Such a bashing was for a Convention reason. The Tribunal erred in finding otherwise.”
Furthermore, the applicant argues that the Tribunal failed to consider that there may be mixed motives for the attack, one of which was Convention based. This would constitute jurisdictional error.
The Tribunal found at pages 143-144 of the Court Book:
… I will give the applicant the benefit of the doubt over his claim to have been a BNP youth wing worker, but I am not satisfied that he was an official of the party or that he had a political profile. Given this, I am not satisfied that he was targeted by rival activists in the manner he suggests. I will give the applicant the benefit of the doubt to have been attacked once by opposition activists, but I am not satisfied that this in itself amounts to persecution given the general level of violence and its random and ubiquitous nature. I consider that any attack on the applicant would not have been Convention-based persecution but part of the constant vendettas being waged between and within the rougher elements of the political scene, as independent evidence suggests occurs.
It is clear that the Tribunal had real reservations about whether the applicant had been attacked. It found many of his claims implausible. Nevertheless, it was prepared to give him the benefit of the doubt. It also made no finding that he was attacked “because he was a BNP worker”.
What the Tribunal did was make unequivocal findings that:
·it was not satisfied that any attack amounted to persecution “given the general level of violence and its random and ubiquitous nature”;
·any attack would not be Convention based persecution but part of the constant vendettas;
·its conclusions were based on the independent evidence;
·the applicant did not face a real chance of persecution in Bangladesh.
The Tribunal considered the possible causes of any attack which the applicant might have faced. It decided that any such attack would have resulted from “personal vendettas rather than as a result of political” factors (see pages 139 and 180-181 of the Court Book). In doing so it was considering whether there were mixed motives for any attack. By its conclusions it implicitly found that there were not. The attack was for reasons personal to the applicant not for reason of his political opinions.

The evidence before the Tribunal suggested that any attack would have been for personal reasons. The Tribunal was perfectly entitled to accept that evidence and reject the applicant’s claims.
I can find no merit in this ground.

Country information issue

The applicant contended that the Tribunal fell into jurisdictional error by failing to consider certain independent country information. The applicant claimed before the Tribunal that opposition activists had placed false charges against him. The Tribunal did not accept this claim. One reason for rejection according to Mr Zipser was (at page 144 of the Court Book):
I find it implausible that if he was facing a murder charge (whether trumped or not) the applicant would be able to leave Bangladesh freely. I am not satisfied that he could have engineered a safe exist through airport Customs and security particularly given his own claim that the ruling Government was bent on persecuting him.
Mr Zipser argued that this was inconsistent with the Country Information Report at page 190 of the Court Book:
If a person was very well known then it would be hard for them to leave the country. Unless they are a very obvious political figure or criminal figure then I think they could leave the country quite easily; if not through an airport then at least through numerous land crossings. If a person really wanted to leave the country without being detected by police it would be quite easy for them to do it.
Mr Zipser said that not only are Tribunal’s findings contrary to this information but the Tribunal breached its obligations under s.424 by not having regard to that information. In Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 152 at [59], Sackville J said that a decision maker must have “realistic regard” to the information and “there must be … an active intellectual process directed at the information”. In this case the Tribunal had no regard to this information.
I accept the respondent’s submission that the finding on the ability of a person on a murder charge to freely leave Bangladesh was not essential to the Tribunal’s rejection of false charges having been laid against the applicant. Its principal reason was the applicant’s lack of political knowledge and profile.
Furthermore, the independent country information set out above is entirely consistent with a finding that it was implausible that a person facing a murder charge could leave Bangladesh freely through airport, customs and security. A person facing a murder charge might be described as a “criminal figure”.
The Tribunal did not fail to have regard to the information it had collected in the sense considered in Singh. I reject this ground as well as the applicant’s no evidence submission.

Delay

The respondent contended that had I found that the Tribunal decision was affected by jurisdictional error I should refuse relief because of the excessive delay in bringing this application. In the event I have not had to consider this matter, although on its face there is much to be said for the respondent’s contention.

Conclusions

I have found no merit in any of the grounds. The applicant is really asking the Court to engage in merits review, something it is not empowered to do. In my view the findings made by the Tribunal were reasonably open to it on the material before it. I am not satisfied the Tribunal made any legal error going to jurisdiction in coming to its decision.
As the applicant has failed to demonstrate jurisdictional error the application must be dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Mowbray FM.

Associate: Natasha Werner

Date: 28 February 2006