SZGCT v Minister for Immigration
[2006] FMCA 1447
•8 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGCT v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1447 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 414, 483A |
| Htun v Minister for Immigration [2001] FCA 1802 Minister for Immigration v Guo & Anor (1997) 191 CLR 559 NABE v Minister for Immigration (No.2) [2004] FCAFC 263 |
| Applicant: | SZGCT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG998 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 20 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Counsel for the Respondents: | Mr A Carter |
| Solicitors for the Respondents: | Sparke Helmore Solicitors |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG998 of 2005
| SZGCT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 21 April 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).
The Tribunal decision was made on 22 March 2005 and handed down on 13 April 2005, affirming a decision of the delegate of the first respondent made on 26 November 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGCT”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision of Mr Andrew Mullin, reference N04/50369, provides the following background information. The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 2 October 2004. On 12 November 2004, she lodged an application for a Protection (class XA) visa with the Department of Immigration under the Act. On 26 November 2004, a delegate of the Minister refused to grant the protection visa and on 21 December 2004, the applicant applied for review of the delegate’s decision.(Court Book (“CB”) 97)
The applicant claims to have been born in Barisal, Bangladesh in 1968. She claims her religion is Islam. She claims to have lived at the same Dhaka address from 1973 to August 2004, and at another Dhaka address from September to October 2004. She further claims to have received a total of 16 years of formal education and two tertiary degrees. She was an assistant manager of a company in Dhaka from October 1998 to September 1999. She has never been married.
Her mother, two brothers and two sisters live in Bangladesh. She also has a sister and a brother-in-law in Australia, both of whom have made application to the Federal Magistrates Court.(CB 99)
Applicant’s claims
A summary of the applicant’s claims are contained in the respondents’ written submissions prepared by Mr Carter and I adopt paragraphs and 2 and 3 of those submissions:
2.The applicant, a citizen of Bangladesh feared harm from both the Awami League (“AL”) and the Bangladesh National Party (“BNP”) due to her sister’s marriage to a member of the Jatiya Party (“JP”) in 1986. The applicant and her mother were injured in 1998 when a car driven by an employee of the AL struck their rickshaw. In 1999 threats were made that acid would be thrown at the applicant and, as a consequence, she ceased her employment. The applicant and her family were evicted from their home in Dhaka in September 2004 due to the actions of corrupt politicians, judges and officials.
3.The applicant was also subjected to untrue rumours about her character circulated by conservative Islamic figures associated with the Jamaat-e-Islami party (“JIP”). This frustrated the applicant’s prospects of an arranged marriage. The applicant claimed that her failure to wear a headscarf and involvement in a cultural dance troupe was used as the basis for untrue rumours that she was an immoral person.
Tribunal’s findings and reasons
I also adopt the summary of the Tribunal’s reasons contained in paragraphs 4 to 7 of the written submissions prepared by Mr Carter:
4.The Tribunal was not satisfied the applicant held any particular political opinion or that any particular political opinion would be imputed to her. In support of this finding, the Tribunal found that:
a. the applicant did not claim to be a member or supporter of any political party;
b. the applicant’s brother-in-law did not have a significant political profile and last lived in Bangladesh in 1991;
c. the applicant’s relationship with her brother-in-law was only indirect; and
d. there were “doubts” as to the credibility of the applicant’s claims of being targeted by both the AL and BNP.
5.The Tribunal accepted that the applicant suffered harm due to her family residence being targeted for redevelopment by corrupt political figures. The RRT found that the reason for the eviction from the family residence was for monetary gain.
6.The Tribunal treated the applicant’s claims regarding the arranged marriage issue as a claim based on religion. Whilst it was accepted the applicant may have been involved in unsuccessful attempts at an arranged marriage, the Tribunal was not satisfied this was due to actions of the Jamaat-e-Islami (“JI”) party as she claimed. Further, it was not satisfied that the applicant would suffer from the JI for this reason nor did the Tribunal find it credible that JI figures would have been able to find out each time a marriage was being arranged and would have been able to frustrate it each time with a rumour.
7.The Tribunal accepted that the applicant had suffered serious harm in the past but was not satisfied that it was because of political opinion or religion. It was not satisfied that there were any grounds for believing that she would suffer serious harm in the future in Bangladesh. The RRT provided detailed reasons for its rejection of the political and religious based claims. The findings made by the RRT were ultimately findings of fact and not open to challenge.
Application for review of the Tribunal’s decision
On 21 April 2005, the applicant filed an application for review under s.39B of the Judiciary Act. On 12 September 2005, the applicant filed an amended application which contains two grounds. Mr Young, appearing for the applicant, advised the Court that he would only proceed in respect of the first ground of the amended application.
He did not press the second ground. The applicant’s first ground claims:
The RRT made jurisdictional error by failing to take into account the Applicant’s claims to fear both the Awami League and BNP by reason only of those two bodies being bitter rivals.
Submissions
Mr Young acknowledged ambiguity in relation to the first ground:
…by reason only of those two bodies being bitter rivals.
Mr Young submits that jurisdictional error arose from the Tribunal’s rejection of the applicant’s claim that she had been persecuted, by either or both the Bangladesh National Party (“BNP”) and the Awami League (“AL”), because it took the view that those two parties were bitter rivals. Mr Young submits that the Tribunal decision contains, under the sub-headings “Politically-motivated harm” and “Religion-motivated harm”, synopses of the applicant’s claims.(CB 110-113) It is the issue of politically motivated harm with which this application is concerned and the Tribunal stated:
The Applicant claims that she and her family have suffered harm from senior political figures in both the Awami League and the BNP because of her sister’s marriage in 1986 to SK [pseudonym], a member of the Jatiya Party.(CB 110.5)
The nature of the applicant’s claim is an imputed political opinion because of her sister’s marriage to a person (“SK”) who was a member of the Jatiya Party. The Tribunal dealt with the applicant’s specific claim as follows:
She claims that because of this connection armed thugs from both the BNP and Awami League regularly visited the family house, made threats that they should leave and demanded money. She claims she and her mother were injured in 1998 when a car driven by an employee of the General Secretary of the Dhaka City Awami League struck their rickshaw. She claims threats were made to throw acid at her, causing her to cease her employment in 1999. She claims the family were illegally evicted from their house by corrupt politicians, judges and officials in September 2004 and her younger brother was beaten when they attempted to mount a legal challenge to the eviction.(CB 110.6)
Mr Young contends that the applicant made specific claims of past persecution by both the AL and the BNP and what she claims to fear in the future. The Tribunal then directed itself to determine two questions. They are whether the applicant’s evidence demonstrated that she had a particular political opinion and whether a political opinion would be imputed to her. Mr Young concedes that the first of those questions was always going to be answered in the negative as the applicant did not claim that she personally held a particular political opinion. This was a case of imputed political opinion.
The Tribunal answered the first question in the negative for five reasons:
a)The applicant did not claim to have ever been a member of any political party;
b)The applicant did not provide any basis for believing that SK himself had a significant political profile;
c)SK last lived in Bangladesh in 1991;
d)The relationship with SK was by marriage, which the Tribunal characterised as indirect;
e)The Tribunal doubted the credibility of the applicant’s claims that she and her family were targeted by both the AL and the BNP.
Mr Young submits that [12](e) above was the only place where the Tribunal dealt with the applicant’s specific claim. He submits that it is the Tribunal’s jurisdictional task under s.414 of the Act to consider the claim or claims of the applicant and its component integers: Htun v Minister for Immigration [2001] FCA 1802 per Spender, Merkel and Allsop JJ; NABE v Minister for Immigration (No.2) [2004] FCAFC 263 per Black CJ, French and Sellway JJ. Mr Young submits that the Tribunal rejected the applicant’s claim of being targeted or harmed by both the Awami League and the BNP, because those parties were themselves bitter rivals. Mr Young directed the Court to the following passage in the Tribunal decision:
As the Tribunal put to the Applicant at the hearing, the independent country information indicates that the two parties have been bitter rivals for many years and that there is frequent violence between them.(CB 111.9)
Mr Young submits that the information was not disputed.
The applicant’s response was that the two parties had not cooperated in the persecution of her family, but had done so separately and at different times. The Tribunal said:
…nevertheless, unable to accept the proposition that the real or imputed political opinion of the Applicant and her family can have caused both such strongly opposed parties to target them.(CB 111.10)
Mr Young argues that there is clearly a want of logic in relation to that Tribunal finding. The Tribunal did not consider the claim at all because the applicant said that she has been targeted by both parties separately.
Mr Young submits that it is irrelevant whether either or both of those parties would persecute an individual because of the political opinions imputed to that person. Two strong political parties may wish to individually maintain control by preventing the rise of a third party. Similarly, that each of those parties may have reason to block the recruitment of a third force. Mr Young argues that the Tribunal decision gives rise to a want of logic. However, he acknowledges that want of logic in itself is not jurisdictional error. Rather, the question is whether the want of logic demonstrated a failure by the Tribunal to ask itself the right questions or consider the relevant integers of the claim. Mr Young says this is what the Tribunal did here.
Mr Young submits that the Tribunal did not consider matters which the applicant raised which occurred from the time of her sister’s marriage in 1986 because the AL and the BNP are political rivals.
Mr Young acknowledged that the Tribunal considered matters in relation to whether a particular political opinion would be imputed to the applicant, such as those listed at [12](b)-(d) above. The strongest evidence the applicant provided in relation to this issue was that there had been past persecution. However, that in itself does not necessarily satisfy the test because there could have been past persecution which the Tribunal did not accept was likely to occur in the future.
Alternatively, the Tribunal did not accept that the persecution would occur in the future because of the applicant’s relationship with SK.
Mr Young submits that the strongest part of the applicant’s overall submission was that she had a well-founded fear of persecution by reason of her imputed political opinion. The Tribunal did not take into account her claims of past persecution. If the Tribunal had considered that the applicant had been targeted by either or both the AL and the BNP, then there was a real issue as to why that would have happened.
Mr Young submits that the Tribunal did consider the long running dispute between the Bangladesh Teachers Association and the applicant’s father. It accepted that her father, a senior political figure, may have directed that campaign. The Tribunal was not satisfied that the Teachers Association was motivated by anything other than a desire for a monetary gain, being a separate extortion claim.
The applicant argued that the way the Tribunal dealt with that specific claim was either as a constructive failure to deal with the claim, or as taking into account irrelevant consideration (being that the BNP and the AL were themselves bitter rivals). Mr Young submits that the Tribunal made a jurisdictional error in relation to the applicant’s claim about what happened in the past at the hands of the AL and the BNP.
Mr Carter submits that the applicant has consistently claimed to be targeted as a result of her sister’s marriage to SK by both the BNP and the AL. The only basis of the claim is that the applicant has a politically imputed opinion. The Tribunal did consider in detail the suggestion that the applicant was subjected to imputed political opinion as a result of the marriage of her sister to SK. That was the basis upon which the claim was brought and how it was determined. Mr Carter argued that it was not for the Tribunal to undertake independent investigations regarding the applicant’s claims, even though Mr Young conceded that the claim may have been vague.
Mr Carter submits that the Tribunal carried out its function properly by providing a detailed analysis of the claims put before it. It tried to make sense of them and questioned the applicant at its hearing about what she thought the claims were. Mr Carter submits that the applicant’s ground of review is on this sole narrow point which is read out of context.
Mr Carter identified the following as the crux of the applicant’s argument:
Finally, the Tribunal doubts the credibility of the Applicant’s claim that she and her family have been targeted by both the Awami League and the BNP. As the Tribunal put to the Applicant at the hearing, the independent country information indicates that the two parties have been bitter rivals for many years and that there is frequent violence between them. The Applicant’s response was that the two parties had not cooperated in persecuting her family but had acted individually and at different times. The Tribunal is, nevertheless, unable to accept the proposition that the real or imputed political opinion of the Applicant and her family can have caused both such strongly opposed parties to target them.(CB 111.9)
Mr Carter noted that the passage above shows that the Tribunal did state that the applicant’s claim was of the relationship of her sister to SK. It considered the politically imputed claim in light of that connection. Mr Carter submits this is not a finding that the applicant had an imputed political opinion, but rather that the Tribunal was addressing the matter as put to it.
Mr Carter draws the Court’s attention to this claim where it appears in the protection visa application. In response to the question “Do you think the authorities of that country can and will protect you if you go back? If not, why not?”, the applicant replied:
…I am extremely worried because we had been the target from both the BNP and the Awami League Governments in the past due to my brother-in-law’s political image back at home where they had not hesitated even to attack my sister in 1991…(CB 19)
In the applicant’s statement attached to her visa application, the claim was again raised:
…But, because of my sister’s marriage to SK, the Awami League and the BNP Government’s Musclemen on a time to time basis started to threaten us to leave the house and get ourselves out of Dhaka City…(CB 24.5)
Mr Carter submits that there is significant overlap between the applicant’s claims of being targeted by the BNP and the AL, and her claims of suffering harm as a result of extortion relating to her father’s position in the Bangladesh Teachers Association. The Tribunal properly dealt with the Teachers Association issue by accepting that there may have been some corruption, including extortion threats. However, it found that they were not Convention related reasons, but were done for monetary gain. Although the applicant may have suffered serious harm in relation to those threats, the Tribunal found that they were not politically based. On that basis, the Tribunal dealt with extortion and corruption in its decision and is not required to go any further.
The Tribunal at its hearing put to the applicant that in light of the independent country information indicating that the AL and the BNP were old rivals with a history of political violence between them, it was surprising that they would cooperate to persecute the applicant and her family. In response, the applicant reported of different incidents in which the two parties participated independently.
Mr Carter submits that this qualification by the applicant is that the issue is open to suggestion that there was either some cooperation between the parties, or alternatively, they were wholly independent incidences. If the applicant is suggesting that the violence was based upon which political party was in government at a particular time (which was referred to in the protection visa application as the government of the day) that still does not overcome the problem that the Tribunal did not accept her claim.The Tribunal gave four other reasons for that conclusion. Alternatively, if the Tribunal is meant to understand the nature of her claim, then it the applicant’s obligation to explain the nature and content of the claim.
Mr Carter submits that the applicant had ample opportunity to put her protection visa claim at the following times:
a)The original visa protection claim.
b)The statement lodged with the visa application.
c)The supplementary information.
d)The benefit of the interpreter at the hearing.
e)The opportunity to respond to active questioning by the Tribunal about what were the claims.
Mr Carter submits that the suggestions there was misunderstanding or the Tribunal had failed to carry out its duties is unapparent from the Tribunal decision; the Tribunal gave full consideration to the claim. The Tribunal was faced with the difficult task of a multifaceted claim across political, religious and non-Convention related issues and it addressed them all.
Mr Carter submits that the Tribunal stated clearly the view it had reached:
The Tribunal is not satisfied, for several reasons, that the Applicant’s evidence demonstrates that she held any particular political opinion or that any particular political opinion would be imputed to her.(CB 110.7)
That was a comprehensive analysis of how the applicant could be said to have been subject to either an actual or imputed political opinion.
The applicant did in fact amend her original claim of cooperation between the BNP and the AL, to a revised claim of “no it is a separate acts of targeting”. However, she did not say that the “targeting” was for any reason other than the marriage of her sister to SK. Mr Carter submits that there was no suggestion that she held an imputed political opinion because of her political profile or other factors.
Mr Carter submits that although the Tribunal made a finding of serious harm for an unrelated non-Convention reason, there was no finding by the Tribunal for persecution pursuant to the Convention.
Conclusion
The ground of this appeal is the applicant’s imputed political opinion arises because of her sister’s marriage to a person identified as SK, who is a member of the Jatiya Party. This claim has been consistently maintained by the applicant since her protection visa application and has not varied or waned subsequent to that application. I accept Mr Carter’s submissions that the Tribunal is not obliged to independently investigate and establish what the applicant’s claims were in respect of her fear of persecution. In the circumstances, the claim is vague. It is for the applicant to make out her own case: Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J. However, the Tribunal did carry out its function properly by analysing in detail the claim after extensively questioning the applicant. An essential finding of the Tribunal relates to doubts about the applicant’s credibility. Credibility findings are a matter for the Tribunal par excellence: Minister for Immigration; Ex parte Durairajasingham (1999) 168 ALR 407. The Tribunal decision, which is the only evidence before the Court in relation to the conduct of the hearing, indicates that its concerns about aspects of the applicant’s evidence were raised with her in the course of the hearing. The Tribunal did make the applicant aware of the critical issues: Kioa v West (1985) 159 CLR 550. I am satisfied that the Tribunal’s findings were open to it on rational grounds on the material before it and that no error is disclosed in its treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration (1998) 86 FCR 547.
I accept that the extortion in relation to the applicant’s father’s position in the Bangladesh Teachers Association was for reason of monetary gain and not for a Convention-related reason. I also accept that the applicant’s politically imputed opinion was due to her brother-in-law’s membership of the Jatiya Party and nothing more. The applicant was provided with a number of opportunities in which to put her claim and develop any aspect of that. I am satisfied that the Tribunal comprehensively analysed the imputed political opinion claimed and that the Tribunal was satisfied that there was no finding by the Tribunal of persecution pursuant to a Convention reason. I am not satisfied that the single ground in this claim can be sustained. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 7 November 2006
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