SZFRA v Minister for Immigration
[2007] FMCA 1515
•13 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFRA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1515 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – no failure to consider material – according little weight to evidence does not amount to rejection of the evidence. |
| Migration Act 1958, ss.54, 55, 91X, 430 |
| Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZGKX v Minister for Immigration & Citizenship [2007] FCA 461 NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 Linett v McIntyre (2002) 117 FCR 189 Ahmed v Minister of Immigration & Multicultural Affairs [1999] FCA 811 Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940 |
| Applicant: | SZFRA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 105 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 30 April 2007 |
| Date of Last Submission: | 30 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr. T. Ower |
| Solicitor for the Applicant: | Mr. M. S. Haque |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 105 of 2007
| SZFRA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed in Court on 30 April 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 7 December 2006 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 18 May 2004 refusing the applicant’s application for a protection visa.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision made on 20 December 2004 which was quashed by order of this Court dated 21 August 2006. (Court Book (“CB”) page 276).
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 claims to have been born in Gazipur in 1954. He claims to have lived at the same address in Tumila, Kaligonj, Gazipur from 1986 to April 1996. He claims to have received a total of ten years of formal education in Gazipur, ending in 1972. He claims to have been employed in an electrical engineering company from 1976 to 1979, and from 1979 to March 1996 as an animal attendant at ICDDR, B (the International Centre for Diarrhoeal Disease Research) He claims to have been married in Gazipur in 1978 and claims that his wife, two children and two siblings are living in Bangladesh. (Court Book (“CB”) page 354).
The applicant claims to fear future persecution in Bangladesh because of his political activities and religious beliefs.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-13 of the Tribunal’s decision (CB 354-363). Relevantly, they are:
Application for protection visa
a)the applicant was born into a “religious oriented minority Christian Catholic family” in Gazipur, about 40 kilometres from Dhaka. His father was a friend of Sheik Mujibur Rahman, the founding father of Bangladesh, and he played a great role in the war of liberation in 1971. A number of family members also took part and in the course of the war their house was burned;
b)in 1974 the applicant joined the Jubo League, the Awami League’s youth wing. In 1980 he was elected to the position of General Secretary of the Jubo League’s Gazipur district committee. He joined the Awami League and in 1986 he was elected as the Joint Secretary of the party’s Gazipur branch. “A political movement developed at that time and I joined that movement and led many demonstrations against the then Ershad government …”;
c)the applicant made a significant contribution towards the Awami League campaign in the 1991 general election which was won by the BNP with the help of Jamat-e-Islam an “orthodox fanatic Muslim party”. After forming a government the BNP began persecuting Awami League activists indiscriminately. The government was involved in corrupt practices and the Awami League led a movement to remove it from power. The applicant was elected as “the executive member of the Awami League Gazipur district committee” in 1993 and he led many processions against the government. On a number of occasions the applicant was attacked by BNP hoodlums who threatened to kill him. In the meantime, a number of false cases were filed against the applicant “to doom my political future”. He came to Australia and lodged an application for permanent residency on the basis of his skills;
d)after the applicant’s departure from Bangladesh a political change followed the 2001 election which was won by the BNP-led coalition. The government was revengeful against secular-oriented parties, particularly the Awami League and their prime targets were minorities, including Christians. The applicant claims that the government has targeted Awami League leaders and activists to kill them;
Written submissions
e)around 1993, the applicant was attacked by BNP and Jamat-i-Islami hoodlums who threatened to kill him. They acted with impunity and the government gave its backing for action against minority groups;
f)the applicant was also an active member of the Ghatak Dalal Nirmul Committee of Bangladesh (“GDNCB”), assisting victims of the war of liberation and pressing for action against war criminals. The applicant became a target for anti-liberation and communal political parties;
Second Tribunal hearing
g)starting in 1974 false cases relating to bombs and arms were filed against him (although later he said it was only one case);
h)in addition to false charges being laid, the applicant was assaulted and large sums of money extorted from him. He paid the money, but eventually realised he had to leave the country; and
i)at the hearing before the Tribunal the applicant made an additional claim that he would suffer extortion demands in Bangladesh because, having worked in Australia, he would be perceived to be wealthy.
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 was not satisfied that the applicant had been a member of the Awami League or that he was in any other way a political activist in the Awami League interest. Nor was it satisfied that the applicant’s evidence concerning his alleged political activism in Bangladesh was accurate, noting that:
i)if he had genuinely had a history of dedicated involvement in the Judo League and the Awami League extending over twenty years and occupied senior positions in his local branch he ought to have been able to speak with some degree of knowledge and detail about his activities and experiences but there was nothing in his responses which gave any indication to the Tribunal of an authentic, first-hand experience of political activism or a leadership role in the local branch of a major political party;
ii)it was striking that such an allegedly extensive immersion in the political life of his neighbourhood and country produced almost no circumstantial detail as to how the applicant managed this important part of his life or what it meant for him;
b)although the Tribunal accepted that in Australia the applicant had been involved in the Awami League’s Australian organisation as well as the GDNC (“Ghatak Dalal Nirmul Committee”), given the Tribunal’s adverse finding about the applicant’s claimed political activism in Bangladesh it was not satisfied that it was plausible that his essentially minor and marginal activity with the Awami League and GDNC in Australia would establish a political profile for him such that he would be targeted by the BNP, Jamaat-e-Islami or anyone else should he return to Bangladesh;
c)the Tribunal was not satisfied that the applicant or other members of his family had ever suffered serious harm in the past because of their Christian religion or that they had ever been hindered or prevented from worshipping as they wished;
d)the Tribunal was not satisfied as to the accuracy of the applicant’s claims to have suffered harm in Bangladesh noting that his evidence concerning the alleged false case brought against him in 1974 was vague, evasive and contradictory;
e)the Tribunal was not satisfied that any such case was ever brought against him, finding it quite implausible that the authorities would have failed to have proceeded against him for more than twenty years had he been charged in 1974 with serious offences relating to weapons and bombs;
f)the Tribunal was not satisfied that any extortion demands were ever made against the applicant, noting the following:
i)the applicant’s evidence of having received the extortion demands was vague, evasive and contradictory;
ii)as it was not satisfied that the applicant had a political profile in Bangladesh, the Tribunal did not accept that this could have supplied a motive for extortion;
iii)the Tribunal found it implausible that in his employment at a research institute the applicant would have presented a likely target for extortion attempts;
iv)the applicant’s evidence that, despite his refusal to pay money, the same or similar extortion letters kept arriving and no harm was ever visited on him was implausible;
g)the Tribunal was not satisfied that that applicant was ever faced with physical harm in Bangladesh, noting:
i)the applicant’s evidence was vague and the Tribunal found highly implausible the applicant’s explanation that he was at risk of attack because of his alleged activism in the Awami League, only being saved from such harm because he was always accompanied by supporters when he ventured out;
ii)as it did not accept that the applicant had any political profile in Bangladesh, the Tribunal did not accept that he was ever threatened with physical harm for this reason;
iii)on the basis of his other evidence there was no other reason to believe the applicant faced physical harm for any other reason in Bangladesh;
h)the Tribunal was not satisfied that the applicant’s conduct in delaying his protection application for eight years was consistent with his claim to have fled Bangladesh in fear of his life; and
i)the Tribunal was not satisfied that there was a real chance of the applicant suffering harm by reason of having lived for an extensive period in a Western country which might lead him to be perceived as being wealthy, noting that there was no evidence to indicate that the applicant would face extortion or other harm because of this reason other than a single assertion in a letter from Mr Ewen Brown of the Australian Presbyterian World Mission (NSW) dated 21 November 2006 (CB 300).
In essence the Tribunal found:
There is nothing in the Applicant’s claims, considered individually or cumulatively, on which I am satisfied that his circumstances have changed so that there could now be said to be a real chance he will suffer harm if he returns to Bangladesh. (CB 368).
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
1. The Tribunal constructively failed to exercise jurisdiction by failing to consider the significance and weight attaching to Mr Brown’s letter corroborating the applicant’s sur place claim to fear persecution because he lived for an extensive period in a western country;
Particulars:
a) the Tribunal noted that the applicant made an additional claim that he would suffer extortion demands in Bangladesh because he would be perceived [as] wealthy after working in Australia;
b) the Tribunal dismissed that claim by noting that “beyond a single assertion in the letter from Mr Ewen Brown, [there is no] evidence to indicate that the applicant would face extortion or other harm because he has lived for an extensive period in a western country” (CB 368);
c) the Tribunal did not “have regard” to all of the information to hand in the sense of engaging in an “active intellectual process” in relation to the letter.
The applicant submitted that although the Tribunal had regard to the letter of Mr Brown it:
a)rejected the evidence contained in his letter without giving reasons for that rejection as it should have done because that evidence, if accepted, would have been susceptible of producing an ultimate outcome different from that which was reached; and
b)the Tribunal failed to consider properly the evidence contained Mr Brown’s letter.
In relation to the first point the applicant referred to the decision of McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 422 [65] where his Honour said that whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons.
The applicant also referred to SZGKX v Minister for Immigration & Citizenship [2007] FCA 461 where, at [23], Conti J discussed McHugh J’s reasons for judgment in Durairajasingham in the following terms:
… his Honour’s emphasis appears to be on the need for the Tribunal to make clear the nature and extent of its reasons for rejection of evidence placed before it going to material issues in the proceedings, which, if accepted, would be susceptible to producing an ultimate outcome different to that which was reached.
As to his second point the applicant submitted that although the letter from Mr Brown may have been referred to, there was no intellectual engagement concerning what that evidence meant for the proceedings which there should have been because the letter went to a material issue. The applicant submitted that the reasons given by the Tribunal failed to say why Mr Brown’s evidence was rejected in circumstances where no issue was raised concerning the probative value of the evidence.
The applicant also relied on the judgment of Madgwick J, with whom Conti J largely agreed, in NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 where his Honour said at 92 [212]:
… given the potential importance of the letter and the delegate’s fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], a ‘decision-maker may be aware of information without paying any attention to it or giving it any consideration’. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration – had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in ‘an active intellectual process’ in relation to the letter – yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.
However, his Honour was there discussing the delegate’s mandatory obligation under ss.54 (1) and 55 of the Act. The Act contains no equivalent provisions relating to the Tribunal. Consequently his Honour’s reasons have no direct applicability to the issue to be determined here.
The first respondent submitted that although the Tribunal had acknowledged the applicant’s claim that he would suffer extortion demands in Bangladesh because he would be perceived as wealthy after working in Australia, a fair reading of the Tribunal’s decision reveals that the Tribunal rejected this claim on the basis that it was not adequately supported by the evidence. The first respondent submitted that, in reality, what the applicant was seeking the Court to do was to draw an inference, from the way the Tribunal’s decision was expressed, that the Tribunal had not dealt with the question raised by the applicant. The first respondent submitted that it was the Tribunal’s duty to give reasons for its decision and to set out material findings of facts but it did not have to give reasons for findings of fact. Moreover, the claim in question was comparatively less important than the claims made by the applicant in respect of physically and religiously-based persecution, had been advanced late, at the second Tribunal hearing, and was only supported by a passage in Mr Brown’s letter. In that letter, Mr Brown said this:
The external and internal pressures are not always tangiable [sic] but evident in every day life in the capital and country side. Over the last 3 years a number of events occurred that reflect the instability of the country and persecution of Christians. Especially those who are observed to have money from the West and are Christians as [SZFRA] would fall into such a situation if he returned to his country. (CB 300).
The first respondent submitted that, at its highest, the applicant’s case was that Mr Brown’s letter was given insufficient weight and, in support of that submission, the first respondent referred the Court to the decision of Kiefel J in Linett v McIntyre (2002) 117 FCR 189 where her Honour said at [34]:
The reference in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1, upon which the VPF placed reliance, that a ground for judicial review which involved jurisdictional error is made out if it “ignores relevant material” should not be read out of context. It does not seem to me that their Honours were departing from previous statements about jurisdictional error and errors within jurisdiction. In particular the ground relied upon is qualified by their Honours. They do not refer to every occasion when relevant material is ignored by a tribunal as sufficient, but only when it “affects the exercise of its powers”.
In relation to the applicant’s first contention, that the Tribunal rejected the evidence contained in Mr Brown’s letter, insufficient attention has been given to the way the Tribunal expressed its finding. What it said was this:
While I accept that accept that he is a Christian I am not satisfied that he or his family ever suffered any harm for this reason in Bangladesh in the past or that there is any reason to believe he or they would suffer harm for this reason in future. Nor, beyond a single assertion in the letter from Mr Ewen Brown, is there any evidence to indicate that the Applicant would face extortion or other harm because he has lived for an extensive period in a western country and might be perceived as being wealthy. I am not satisfied that there is a real chance that we would face harm for this reason in Bangladesh. (CB 368).
What the Tribunal says is that Mr Brown’s letter relevantly contained no more than a single assertion supportive of the applicant’s claim to fear persecution upon return to Bangladesh because he would be perceived as wealthy. The word “assertion” identified how the Tribunal viewed what Mr Brown had said in his letter. By describing it as an assertion the Tribunal was, in effect, saying that Mr Brown’s letter did not contain useful evidence but, rather, contained material which was an argument or a conclusion. It was not necessary for the Tribunal to reject what Mr Brown said as being untruthful, unfounded or incorrect, in order to, implicitly, accord it little weight, as I find the Tribunal did. At the highest, all the Tribunal did was implicitly reject the relevant passage of the letter as containing persuasive evidence supportive of the applicant’s claim. It was not, in terms, rejected as being wrong or untrue.
The applicant submits that the Durairajasingham test required the Tribunal to expressly reject the evidence in question. However, this submission misunderstands what McHugh J said in that case. Noting that the Tribunal is obliged by s.430 to express the reasons for its decision, his Honour said that when rejection of evidence is one of the reasons for the decision the Tribunal must set that out as one of its reasons (at 442-423 [65]). In this case, a rejection of Mr Brown’s letter was not one of the reasons for the decision which the Tribunal reached. The Tribunal reached its decision because it was not persuaded by the material placed before it by the applicant. McHugh J’s comments were made in the context of approving what was said by the Full Court of the Federal Court in Ahmed v Minister of Immigration & Multicultural Affairs [1999] FCA 811. His Honour also referred at [64] to what was said in Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940:
In Addo, the Court said:
"Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act
...
It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made." (footnotes omitted).
Seen in context, his Honour’s reasons require the rejection of the evidence to be more than a step in the reasoning process, and to be, in fact, one of the actual reasons for the decision, as would be seen in a decision based on adverse findings of credit as a result of the rejection of a witness’s evidence.
Consequently, to the extent that the Tribunal could be said to have rejected the contents of Mr Brown’s letter because it impliedly rejected the persuasiveness of its contents, it was not required to expressly refer to such rejection in its decision as such rejection was not one of the reasons for its ultimate decision, although its opinion of the evidence can be reasonably easily discerned from the way the evidence was dismissed as “assertion”. However, rather than reject the evidence, what the Tribunal did was merely accord it a weight not sufficiently great that the evidence, on its own, coupled with the applicant’s bare allegation, was sufficient to prove that allegation.
Consequently, jurisdictional error is not demonstrated in respect of the applicant’s first contention.
As to the second contention, that the Tribunal failed to consider properly the evidence contained in Mr Brown’s letter, the fact that it was referred to is indicative of consideration having being given to it. Moreover, the Tribunal’s description of the contents of the letter as being an assertion indicates that the Tribunal considered the letter and then arrived at a conclusion as to the value of its contents.
Additionally, the letter was also discussed by the Tribunal in that part of its decision relating to the applicant’s claim to fear persecution by reason of his Christianity. The Tribunal said that it was not satisfied, on the material before it, that there was a real chance that the applicant would be harmed by reason of his Christianity were he to return to Bangladesh:
In making this finding I have considered the independent country information, press reports submitted by the advisor and the letter and attachments from Mr Ewen Brown of the Australian Presbyterian World Mission (NSW). It is clear from this information that there has been some harassment and incidents of harm directed towards members of the Christian minority in Bangladesh. However, these incidents appear to be isolated and there is nothing to suggest that they are condoned or ignored by the Bangladesh authorities, or that protection is not offered to members of the Christian Community. (CB 366).
Clearly, the Tribunal had given consideration to Mr Brown’s letter on more than one issue and the fact that it was dismissed with few words in the context of the applicant’s late made claim to fear persecution on return to Bangladesh on the basis that he would be perceived to be wealthy, does not alter the fact that consideration had clearly been given to it.
During the course of argument the applicant also identified a passage appearing in independent country information reproduced at CB 304 which states:
Sources told AsiaNews that there may be another explanation. Christians are being targeted by local criminals tied to Islamic extremists. Christians are often forced to pay extortion money or sell their real estate to the local mafia. Through intimidation they can get properties at low cost and speculate on prices.
Contrary to the applicant’s assertion, that passage does not have any direct relevance to the applicant’s late made claim on the basis of his perceived wealth.
For these reasons, jurisdictional error has not been demonstrated in respect of the second of the applicant’s contentions.
Conclusion
Jurisdictional error on part of the Tribunal has not been demonstrated.
Consequently the application will be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 13 September 2007
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