SZGCT v Minister for Immigration and Citizenship

[2007] FCA 250

FEDERAL COURT OF AUSTRALIA

SZGCT v Minister for Immigration and Citizenship [2007] FCA 250

MIGRATION – jurisdictional error – protection visa – appeal from decision of Federal Magistrate dismissing application for judicial review of Refugee Review Tribunal's decision–whether Tribunal considered irrelevant consideration – no error demonstrated

SZGCT v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2319 OF 2006

SPENDER J
2 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2319 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGCT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE OF ORDER:	2 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT DIRECTS  THAT:

1.The name of the first respondent be changed to Minister for Immigration and Citizenship.

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant pay the first respondent’s costs of and incidental to the appeal to be taxed, if not agreed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2319 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGCT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE:	2 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Lloyd-Jones FM of 8 November 2006, who dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) handed down on 13 April 2005.  The RRT had affirmed a decision of the delegate of the first respondent (‘the Minister’) not to grant a Protection Visa to the appellant.

2. The appellant was born in 1968 and is a citizen of Bangladesh.  On 12 November 2004, she lodged an application for a Protection Visa which was refused by the Minister on 26 November 2004.   The application to the RRT was made on 18 December 2004.  The appellant gave evidence orally to the RRT on 15 March 2005.

3. The appellant claimed to fear harm from both the Awami League (‘AL’) and the Bangladesh National Party (‘BNP’) because of her sister’s marriage to a member of the Jatiya Party in 1986. 

4. A written statement by the appellant of 12 November 2004 states:

   ‘ … because of my sister’s marriage to [SH] the Awami League and 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 and by doing so, they were visiting us very often and were asking for money to pay them on a weekly and monthly basis.  They had even attacked me one evening in the year 1998 when I was going for shopping with my mother.
   …
   My poor Mother remained in the Hospital for 5 weeks and even at that time, they kept on reminding us for another attack to happen.’

5. The appellant asserts that the decision of the RRT involved jurisdictional error in that the RRT did not consider the appellant’s claim that both she and her family had been targeted by both the Awami League and the BNP.  It was submitted that the RRT:

   ‘ … rejected the Appellant’s claim that she and her family had been targeted by the BNP and also by the AL because the BNP and the AL were themselves bitter rivals.  As a result, it [the RRT] did not consider whether she and her family had been targeted by either party.’

6. Counsel for the appellant, Mr J.R. Young, pithily summarised the case for the appellant:

   ‘11.The approach of the RRT involved a failure to consider the Appellant’s claim.  It was open to the RRT to accept or reject her claim that she had been targeted by the AL.  It was open to the RRT to accept or reject her claim that she had been targeted by the BNP.  It was further open to the RRT to accept or reject her claim that she had been targeted by both parties.

   12.What was not open to the RRT was to refuse to consider her claims because of the irrelevant consideration that the BNP were themselves bitter rivals.  This was jurisdictional error.’

7. It was then claimed that the Federal Magistrate failed to deal with the issue that was before him, and that his Honour ‘should have found that the RRT failed actually or constructively to deal with the Appellant’s claims to have been persecuted by both the AL and/or the BNP.’

8. The appellant’s submissions concerning jurisdictional error by the RRT are based on a paragraph in the RRT’s reasons: 

   ‘Finally, the Tribunal doubts the credibility of the Applicant’s claims 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.’

9. In my judgment, when the reasons of the RRT are viewed in their proper context, the RRT did not reject the applicant’s claims that she had suffered harm from both the Awami League and the BNP for the reason that the Awami League and the BNP are strongly opposed to each other.  The RRT, in the passage quoted above, was giving reasons for its lack of satisfaction that any particular political opinion would be imputed to her.  The RRT rejected what the appellant said was the cause of the claimed harm. In my view, the RRT in the quoted paragraph was pointing to the improbability that the imputed political opinion of the appellant should cause harm to her and her family from both of the major political parties in Bangladesh, who were so strongly opposed to each other.

10. Under the heading ‘Politically Motivated Harm’ the RRT  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, a member of the Jatiya Party.  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.

    The Tribunal is not satisfied, for several reasons, that the Applicant’s evidence demonstrates that she has held any particular political opinion or that any particular political opinion would be imputed to her …’
    (Emphasis added).

11. The RRT gave five reasons for this conclusion, summarised in the first respondent’s written submissions: 

    ‘i)The appellant did not claim to have been a member, or supporter, of any political party.

    ii)The appellant’s evidence did not provide any basis to conclude that her brother in law had any significant profile which might have provoked attacks from other political figures.

    iii)       The appellant’s brother in law had not lived in Bangladesh since 1991.

    iv)The appellant had only ever had an indirect relationship with her brother in law.

    v)The Tribunal was unable to accept that the actual or imputed political opinion of the appellant and her family could have resulted in persecution from both the BNP and the Awami League, given that they were strongly opposed to each other and were bitter political rivals.’

12. Read in context, the passage of the RRT’s reasons set out in par 8 above is to be understood as a reason for rejecting that she was targeted by both major political parties in Bangladesh because of her connection to her brother-in-law, who until 1991 was a member of a minor political party in Bangladesh.

13. The RRT did accept that the applicant had suffered harm because she and her family occupied part of a property which was targeted for redevelopment by corrupt political figures, and that ‘she and her family have suffered because of this.’  The RRT noted:

    ‘The Tribunal also accepts that very large amounts of money stood to be made by evicting the applicant and her family from their home.  The Tribunal is satisfied that this would have been sufficient motivation for a campaign of threats and intimidation against the family, including regular visits to the house to extort money, threats of acid throwing, the attack on the Applicant and her mother in a rickshaw in 1998, the beating of the Applicant’s brother and the final forced eviction in September 2004.  The Tribunal accepts that senior political figures may have directed this campaign but is not satisfied that they were motivated by anything other than a desire for monetary gain in doing so.’

14. The ‘campaign of threats and intimidation’ particularised by the RRT was not because of her imputed political opinion.  The RRT summarised its conclusion:

    ‘On the basis of all the information available to it, the Tribunal accepts that the Applicant has suffered serious harm in the past in Bangladesh but is not satisfied that this has been for reason of political opinion or religion.  The Tribunal is not satisfied that there are any grounds for believing she will suffer serious harm in the future in Bangladesh. …’

15. Contrary to the submissions for the appellant, in my opinion the RRT did not reject the applicant’s claim that she had suffered harm from both the Awami League and the BNP  because the Awami League and the BNP were bitter opponents of each other; rather the RRT rejected that the imputed political opinion of the applicant could have been the reason that such strongly opposed parties would each seek to harm her.  The RRT is properly to be understood as saying that any harm that she or her family experienced was not as a consequence of the imputation of a particular political opinion.  The campaign of threats and intimidation to which the RRT found she and her family were subjected was motivated by a desire for monetary gain alone.

16. On a fair reading of its reasons, the RRT did consider the appellant’s claim that both she and her family had been targeted by both the AL and the BNP because her brother-in-law was a member of the Jatiya Party.  The RRT rejected that the harm which it found the appellant and her family were caused was because her brother-in-law was a member of the Jatiya Party.  It found the campaign of threats and intimidation was motivated by a desire for monetary gain alone.

17. The Federal Magistrate said in par 33 of his Honour’s reasons:

    ‘33 … I am satisfied that the Tribunal comprehensively analysed the imputed political opinion claimed and that the Tribunal was satisfied that there was no … 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.’

18. The ‘single good in this claim’ is that the RRT had ‘made jurisdictional error’ in the way earlier set out.

19. In my judgment, when viewed in context, the claims of the applicant of suffering harm because of imputed political opinion were not rejected by the RRT for the reason that the Awami League and the BNP are strongly opposed parties. The RRT was not satisfied that any particular political opinion would be imputed to her.

20. In my view, the RRT did not make the jurisdictional error alleged, and the Federal Magistrate was right in his conclusion to that effect.

21. The appeal is dismissed with costs.

22. The name of the first respondent should be changed to Minister for Immigration and Citizenship.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:       2 March 2007

Counsel for the Appellant:	Mr J.R. Young
Counsel for the 1st Respondent:	Mr D. Jordan
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	26 February 2007
Date of Judgment:	2 March 2007