SZIAB v Minister for Immigration

[2006] FMCA 1602

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIAB & ANOR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1602

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicants claim persecution in Bangladesh because of political affiliationwhether Refugee Review Tribunal considered all claims made by applicants – whether Refugee Review Tribunal was obliged to apply the ‘What if I am wrong?’ test – whether Refugee Review Tribunal was obliged to consider state protection in light of finding that applicants’ claims were fabricated.

Migration Act 1958 (Cth), s., s.474

Minister for Immigration and Multicultural Affairs v Rajalingam & Ors [1999] FCR 719

First Applicant: SZIAB

Second Applicant: SZIAC

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG6 of 2006

Judgment of: Emmett FM

Hearing date: 4 October 2006

Date of last submission: 4 October 2006

Delivered at: Sydney

Delivered on: 4 October 2006

REPRESENTATION

Counsel for the Applicant: Mr A. Kumar

Solicitors for the Respondent: Ms T. Quinn, Phillips Fox

ORDERS

(1)I grant leave to the Applicants to rely on an Amended Application signed by Counsel on behalf of the Applicants, filed in Court on 4 October 2006 and initialled and dated by me.

(1)The Applicants proceeding before this Court is dismissed.

(1)I order the first-named Applicant to pay the First Respondent’s costs in an amount of $3,500. 

(1)I also order that the name of the First Respondent be amended to "Minister for Immigration and Multicultural Affairs". 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG6 of 2006

SZIAB

First Applicant

SZIAC

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1.This is an application by a mother and son from Bangladesh, who arrived in Australia on 22 April 2005.  The application seeks constitutional relief in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 6 December 2005. 
The second applicant  was is the son born in 1993 and is the son of the first applicant. and tThe outcome of his the application of the son depends on the outcome of the application of his mother, the first applicant (“the Applicant”).  I shall refer in these Reasons to the Applicant only.

1.The applicant sought relief in this court by way of application filed on 3 January 2006, although, today sought leave to file in court and rely on an amended application that sought relief in the following terms:

“1. A declaration that the decision made by the Refugee Review Tribunal is void and of no effect;

2. An Order quashing or setting aside the decision;

3. An Order remitting the matter to the Refugee Review Tribunal to be dealt with in accordance with the law;

4. An injunction restraining the Respondents from acting on the decision of the Refugee Review Tribunal pending the determination of this application;

5. Further or in the alternative an order restraining the Respondents from serving removal orders pending the determination of this application;

6. Costs

7. Such further and other Orders as the Honourable Court deems fit.”

2.The applicants are represented by Mr Kumar, of counsel.  I note that an order was made by Federal Magistrate Scarlett, in September 2006, appointing the Applicant as the litigation guardian of the second applicant.

3.The Aapplicants applied for protection visas on 18 July 2005.  
and oOn 22 August 2005, that application was refused by a delegate of the first respondent. 

4.On 7 September 2005, the aApplicants lodged an application for review of that decision with the second respondent.  The first named aApplicant (“the Applicant”) attended a hearing before the Tribunal, at which she gave oral evidence. 
The Applicant claimed before the Tribunal that she is an Awami League activist and that, since the current government in Bangladesh has come to power, she has been threatened with harm, as has her son. 

5.In support of her application, Tthe Tribunal also noted that the aApplicant submitted a letter purporting to be from the chairperson of the Moahila Awami League, Sylhet, Bangladesh and dated 13 November 2005 (“the Chairperson’s Letter”).  That Chairperson’s lLetter is in the following terms:

“This letter will cover the party position and personal character.

This is to confirm that [the Applicant] was vice-chairperson of the Sylhet Kutwali Mohila (Women) Awamileague. She was a die-hard worker with leadership attitudes in our party and an asset for the kutwali Thana women branch.

On 24 December 2004, a meeting held for the whole Mohila (Woman) Awamileague branches in my resident (sic).  The BNP and Jamat terrorists drew bombs in my house when the meeting was started.  20 women were injured by the blast.  [The Applicant] luckily saved from any casualties as she was late to the schedule (sic) meeting due to traffic jam.

She was a vary (sic) good leader in Thana Mohila Awamileague. She was very helpful in any financial hardship in the party programmers. She bears moral character and good behavior (sic) to the all party colleagues.

I appreciate if any body wants to know more about her position in Mohila Awami League in Sylhet please do not hesitate to contact me on 0088 0821 716076[phone number inserted]”.

6.The Tribunal also noted that:

i)the Applicant had been threatened personally and had also received threats of kidnapthat her son would be kidnapped and killed and killing of her son.  The Tribunal noted that the applicant stated that the members of the BNP would demand money as a form of harassment of her politically.; and

ii)the Applicant claimed Awami League activists have been targeted by the Bangladesh Nationalist Party (“the BNP”), including bombs being thrown at meetings.

(i) Alleged personal threats from BNP members

1.The Tribunal noted that the applicant said that the first time such a threat was made was in 2002 and such threats have continued since.  The Tribunal noted that the applicant stated she had refused the demands made upon her, as a result of which she was threatened in the streets, “in various ways and was afraid to send her son to school without her accompaniment”.

1.The Tribunal noted that, when asked if she suffered any other harassment, the applicant responded that when there were Awami League meetings that she would not attend because of the bombings on the street.

7.The Tribunal noted that it asked the Aapplicant when she first received phone calls threatening that she would be killed and her son kidnapped. The Tribunal noted that she replied that she had received such phone calls, “frequently over the last two years.”  The Tribunal noted that it put to the aApplicant that, although she claimed to have been threatened over the last three years, that harm would come to her and her child and that she had consistently opposed the threats, nothing further had been done to her.  The Tribunal noted that it put to the Aapplicant that this state of affairs would lead the Tribunal to believe that the threats were either not serious or had been fabricated by her.The Tribunal noted the Aapplicant’s response that she was very careful and noted thethat she took steps she said she took in order to save protect herself. 

8.The Tribunal noted that it put to the applicant Applicant that, although she claimed to have received specific threats in respect of her son and herself over the last three years, those who were alleged to have been making the threats obviously knew where she lived. 

9.In relation to the applicant’s Applicant’s response that the threats had not occurred in the first few years, but that from 2004 she had received such threats about her son, the Tribunal noted that it put to her that this statement contradicted her earlier evidence, in which she stated that she received such threats from 2002. The Tribunal noted the applicant’s Applicant’s response that, at first, she did not consider the threats as seriously as she did in 2004.  The Tribunal also noted that “the [applicant’s Applicant’s] er stated she is a ‘strong leader’ but scared and that as a businesswoman she has money and a business”.

10.The Tribunal noted that, when asked if she suffered any other harassment, the Applicant responded that when there were Awami League meetings that she would not attend because of the bombings on the street.  The Tribunal noted that the Applicant stated that the members of the BNP would demand money as a form of harassment.

11.The Tribunal noted that her explanation led it to consider that either those threatening her were not serious in their threats, or that the claims made by the applicant of the threats had been fabricated.  The Tribunal then noted that the applicant changed her evidence and claimed that the threats had been only over the last two years.  The Tribunal, in noting the change in her evidence, also commented on the unsatisfactory nature of her explanation as to how she was able to avoid harm.  The Tribunal concluded that in light of the evidence before it, the claims made by the applicant Applicant “haved been fabricated in order to advance her protection visa application”.

(ii) Alleged BNP targeting of Awami League activists

12.In considering the applicant’s claim of the targeting of Awami League activists by members of the BMP, tThe Tribunal noted that the Awami League is the legal opposition to the BNP and has many millions of supporters, members and parliamentarians.  The Tribunal accepted that those members have been the subjected to of bombings and terrorist attacks.  However, the Tribunal found that there was not a real chance that the applicant Applicant would be a victim of such outrages, as she was merely one activist among many millions.  For those reasons, the Tribunal was not satisfied that there was a real chance that the applicant Applicant and her son might suffer serious harm, should they return to Bangladesh.  The Tribunal concluded that the applicants were not persons to whom Australia has protection obligations and affirmed the decision of the first respondent.

13.The Tribunal accepted independent evidence before it that indicated that politics in Bangladesh are marked by violence and that there was evidence of the use by the government of state power to maintain its political domination.  However, the Tribunal concluded that it was not satisfied that the threats that the applicant Applicant claimed to have received actually occurred. 

The proceeding before this Court

14.The Applicant sought relief in this Court by way of application filed on 3 January 2006, although, today sought leave to file in court, and rely on, an amended application.

15.The Applicant is represented by Mr Kumar, of counsel.  I note that the Applicant is not present in Court today.

16.Counsel for the applicant Applicant confirmed that the applicant Applicant relied upon the amended application which sought relief on the following grounds:

“1. The Applicant submits that the Tribunal misapprehended the claim.

Particulars

1. The Applicants submits (sic) that the Tribunal has failed to properly assess and/or failed to understand the nature of the applicant’s claims. The Applicants submit that the Tribunal has erroneously assessed claim as that of the “activists” when in fact the Applicants claim is that the persecution is due to the political. At p8 of the judgment (para 1), the Tribunal states the following findings:

“The Tribunal notes that the Awami League is the legal opposition and has many millions of supporters, members and parliamentarians. The Tribunal accepts that they have been subject of bombings and terrorist attacks. However, the Tribunal finds that there is not a real chance the applicant, merely one activist among many millions, would be victim of such outrages.”

a. The Applicants say that the Tribunal erred in applying the test of persecution in that the applicants must be physically harmed to be persecuted for a Convention reason

b. The Tribunal mis-characterises and misconstrues evidence [“… one activist among millions”] as the applicants (sic) claim is not that she is an “activist” but involved as a “vice-president” and thus involved in main stream political activities.

The Applicants submit that the Tribunal has failed to consider the claim as per the claims made by the Applicants involvement with the opposition party and not “one activist among many millions” (page 8 of the decision) as characterized by the Tribunal in its decision “… However, this still does not explain why these very explicit threats did not result in harm to her. …” as per its findings and reasons.

2. The Tribunal erred in law in its interpretation of the acts that may constitute persecution and the application of the Rajalingam test.

Particulars

The applicant submits that the Tribunal failed to appreciate the range of acts that may constitute persecution and that a single act may constitute persecution. The Applicant submits that Tribunal applied incorrect test in relation to the events claimed by the Applicant. The Tribunal failed to apply Rajalingam or it has failed to/incorrectly applied this test

The Applicants say that the Tribunal erred in application of the appropriate test (Rajalingam) in the assessment of the persecution. The Applicant says that the Tribunal erred in the application of the law in failing to properly apply appropriate test stated in Kalala and Rajalingam (1999) 93 FCR 220 cases. The Applicant submits that this is major error of law on part of the Tribunal. The Applicant says that the Tribunal has completely rejected all accounts of the events noted in his claim and has failed to apply “What if it is wrong?” as required in Rajalingam.

Further Particulars

The Applicants say that the Tribunal erred in applying the test of persecution in that the applicants must be physically harmed to be persecuted for a Convention reason.

Erred in law in that the Tribunal appears to be stating that single act of persecution is not sufficient to constitute persecution or that explicit threat must result in harm to constitute persecution and stating at page 8 that the putative persecutors were “not serious in their threats”.

3. The Tribunal has not properly assessed all other social groups including the group that includes the Applicant.

The Applicant states that the Tribunal has misapprehended and misconstrued the country information thereby ignoring the other groups and targets. It is clear that other social groups have not considered (sic) by the Tribunal. The applicant contends that the Tribunal has by no means looked at all the social groups in consideration as to which groups are likely to be targeted and thus fell into jurisdictional error.

The applicant submits that the Tribunal failed to address his claim that he was targeted because of the successful business operations by the Applicant, her sub-group.

4. The Applicant submits that the Tribunal misapprehended the law/ erred in law in stating that there ought to have been a Convention reason in particular circumstances in which the applicant suffered harm instead of directing its enquiries as effective State protection. The Applicant submits the Tribunal misapprehending (sic) the law and has not addressed its mind to the issue of effective State protection. The Applicant did not have to address the Convention grounds when the issue was effective state protection.

Particulars

The applicant submits that the Tribunal fell into jurisdictional error in attempting to address the Convention reason and has misdirected its enquiry. The decisions in Khawar’s case and Respondent S152 of 2003 case indicates that such enquiry would indicate that the Tribunal misapprehended the claim in attempting to find Convention reason instead of focusing on effective State protection. From the decision the applicants submit that focused on the above and did not consider effective State protection. The decision is infected with jurisdictional error such that the Court then can not be confident that the task has been properly carried out in respect of Bangladesh.”

17.I found the amended application to be prolix and opaque. I clarified with counsel for the Applicant, at the outset of his submissions, the complaint which each ground sought to address. I confirmed at the conclusion of his submissions that there was no further ground upon which the Applicant relied that may be otherwise contained in the amended application. I have dealt below with each ground as distilled by counsel for the Applicant in his oral submissions.

18.Ground 1.  Counsel for the Aapplicant contended that at the heart of Ground 1 is a contention that the Tribunal failed to consider a claim by the applicant Applicant that she was a leader in the Awami League and not merely, “one activist among many millions”. 

1. Counsel for the Applicant submitted that the Applicant’s claim was that she is a member of an organisation, and by reason of that membership, the opponents of that organisation, who are in power, persecuted her because of her membership of that organisation.  Counsel for the applicant Applicant went on to stated that the applicant Applicant’s was saying, “I am a member of the Awami League Women’s Branch and because of that membership I will be persecuted”.claim could be articulated as a well founded fear of persecution by reason of her membership of the Awami League women’s branch.

   1.Neither of those articulated claims would appear to support the contention made in Ground 1, that the Tribunal should have considered a claim by the applicant that she was a leader in the Awami League and persecuted for that reason, rather than simply her membership of that organisation. 

   20.The first respondent submitted that the applicant’s Applicant’s claims fell into two groups.  The first claim was of relating to specific threats made against the applicants and the second claim was a threat of general harm to Awami League activists, of which the applicant Applicant was one.  

   21.The Applicant, in referring to the Chairperson’s Letter, stated that the contents of that letter made clear the Applicant’s leadership role and that the Tribunal should have, in the circumstances, considered a claim of persecution of the Applicant because of that leadership role.  Certainly, the Tribunal decision does not refer to any such clearly articulated claim and summarises the Applicant’s claim as being an Awami League activist who has been threatened with harm, as has her son, since the current government has come to power.

   22.There is no evidence before me in the nature of a transcript to suggest that such summary by the Tribunal was not an accurate reflection of the claims made orally by the applicantApplicant. 

   23.The applicantApplicant, in her primary application, stated that she was so active that she was elected as a vice president of the Mohila Awami League, Thana.  That statement is consistent with the Chairperson’s Letter.  Her claims in support of her primary application are clearly expressed in terms of her active membership of the Awami League, rather than because of any particular position or leadership role that she may have held. 

   24.The first respondent contends that the Chairperson’s Lletter from the chairperson of the Mahila Awami League is corroborative of the applicant’s Applicant’s claim that there were bombings on the street during the holding of Awami League meetings, and that the letter relates to the claims made by the applicant Applicant of the general persecution of Awami League members, rather than persecution of the applicant Applicant in particular.  There is certainly nothing in that letter to suggest that any persecution suffered by the applicant Applicant occurred because she was the vice chairman president of the organisation, rather than because she was an active member of the Awami League branch.

1. The Tribunal made specific findings about the applicant’s Applicant’s claims of persecution of her in particular and found that such claims were fabricated.  In the light of those findings, the Chairperson’s Letter can do no more than support the Applicant’s claims of general persecution of Awami League activists by the BNP, which have included bombs being thrown at meetings. 

2. In considering the claim by the Applicant of being an activist in the Awami League, the Tribunal concluded that she was one of many millions of activists, and found that there was not a real chance that she would be a victim of such outrages.

   27.The conclusions of the Tribunal, both in respect of the claims made by the Aapplicant, relating to specific threats against her, and the finding that there was not a real chance that the Aapplicant, as one of many millions of activists, would be a victim, were she to return to Bangladesh, were findings of fact that were open to the Tribunal on the evidence and material before it, and for which it gave reasons. 
   They are the only claims that plainly arise on the evidence and material before the Tribunal and therefore are the only claims properly considered and determined according to law by the Tribunal.

   28.In the circumstances, Ground 1 is not made out.

   29.Ground 2 of the amended application is a complaint that the Tribunal failed to apply the “Wwhat if I am wrong?” test in its decision.  Counsel for the applicant Applicant referred the court to paragraph 63 in particular of Minister for Immigration and Multicultural Affairs v Rajalingam & Ors [1999] FCR 719 (“Rajalingam”) at [63], in whichwhere Sackville J stated:

   “[63] Although the “What if I am wrong?” terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in ‘Wu Shan Liang’ and ‘Guo’ as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a “well-founded fear of being persecuted” for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute “an error involving an incorrect interpretation of the applicable law or an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.

   30.The first respondent referred the court to Rajalingam at [67] where to paragraph 67 of Rajalingam in which Sackville J stated the following:

   “[67] In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons.  If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.”

   31.The Tribunal, in considering the applicant’s Applicant’s claims of specific threats, concluded that they had been fabricated in order to advance her protection visa application.  In those circumstances, such a finding shows no real doubt in the Tribunal’s mind that the events had not occurred.  In those circumstances, it was not necessary for the Tribunal to consider the “Wwhat if I was wrong?” test. 

   32.In relation to the applicant’s Applicant’s claims of being an Awami League activist, the first respondent submits submitted that such a claim is in relation to the contemplation of future persecution and, therefore, is in the nature of speculation by the Tribunal, and as a result of which there is no need to consider the “Wwhat if I am wrong?” test.  I agree with that submission. 

   33.Accordingly, in the circumstances, Ground 2 is not made out.

   34.Ground 3 is a complaint by the aApplicant that the Tribunal failed to consider other social groups of which the applicant Applicant may be a member.  Counsel for the applicant Applicant identified three potential social groups, . 

   35.Tthe first that the applicant belonged to asocial group identified by counsel for the Applicant was the Applicant’s politically oriented family.  The first respondent submitted that there was no evidence of such a particular social group and there were no claims made by the applicant Applicant of persecution because of being a member of a politically oriented family.  I agree with that submission. 

   1.The second social group identified by the counsel for the applicant Applicant was that arising from the statement reflected in the Tribunal’s decision by the advisor that the applicantApplicant, “is a ‘strong leader’ but scared and that as a businesswoman she has money and a business”. 

3. Counsel for the applicant Applicant contended that the applicant Applicant is a member of ‘businesswomen’ and, as such, the Tribunal should have considered persecution of the applicant Applicant by reason of membership of that social group.  Whilst in my view there is no such claim made by the applicant Applicant that she was persecuted because she was a businesswoman with money and a business, even if that was a claim she was making, there is no evidence before the Tribunal of persecution of members of such a social group, namely businesswomen with money and a business.  Accordingly, this social group is not a social group that was required by the Tribunal was required to consider in the context of the Applicant’s claim.to have been considered.

   37.The third social group identified by counsel for the applicant Applicant was in respect of females and children, or the security of females and children.  However, again, there are no claims made by the applicant Applicant of persecution by reason of membership of such a social group and there is no material before the Tribunal to suggest that members of such a social group are targeted. 

   38.Accordingly, Ground 3 is not made out. 

   39.Ground 4 is a complaint that the Tribunal failed to consider whether or not effective state protection was available to the applicants.  The first respondent submitted that, where the Tribunal finds that there is no serious harm in the past amounting to persecution or any likelihood that such harm may arise in the future, it is not necessary to consider state protection, because there is no question as to whether or not the allegation of harm is well founded. 

   40.In circumstances where the Tribunal has found that the applicant’s Applicant’s claims of specific threats against her were fabricated in order to advance her protection visa application, it is not necessary for the Tribunal to proceed to consider whether such a claim of fear of persecution is well founded, and therefore to consider the issue of state protection.

   41.In relation to the applicant’s Applicant’s claims of being an Awami League activist, the Tribunal accepted that such activists have been the subject of bombings and terrorist attacks. , Hhowever, the Tribunal found that there was not a real chance that the applicant Applicant would be a victim of such outrages, merely because she was one activist among the millions. 

   RECORDED  :  NOT TRANSCRIBED

   42.In the circumstances, Gground 4 is not made out. 

   Conclusion

   43.Accordingly, the decision of the Tribunal is not affected by jurisdictional error, and is a privative clause decision. In the circumstances, pursuant to s.474 of the Migration Act 1958 (Cth), this Court has no jurisdiction to interfere.

   44.The proceeding before this court is dismissed.

   1.Mr Kumar, you have heard what I’ve said, that in my view $3,000 would be a more appropriate figure.  However, I do have regard to the fact that there is work done by the first respondent, which it is entitled to be paid for, arising out of the applicant’s failure to comply with directions in filing the amended application and/or submissions in time, so essentially the respondent has had to prepare twice for the same matter.  Now, if it had only been prepared once, I would be more confident in confining their costs to $3,000, and cutting them down to that amount, because - for the reasons I have outlined. 

   1.I appreciate this is not in any way your fault, that you have done the best you could in the circumstances, the lateness of your instructions.  However, the applicant has been on notice for many months that the time has expired for the filing of any such application, and no attempt was made earlier than, obviously, a couple of weeks ago, to attempt to seek advice to progress the application, and I cannot ignore, in those circumstances, the unnecessary and extra costs expended by the first respondent as a result of that conduct.

   RECORDED  :  NOT TRANSCRIBED

   ORDERS DELIVERED

   I certify that the preceding thirty-fiveforty-four (3544) paragraphs are a true copy of the reasons for judgment of Emmett FM

   Deputy Associate:  S. Tsang

   Date:  27 October 2006