SZJDI v Minister for Immigration
[2007] FMCA 2062
•12 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJDI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2062 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – practicability of relocation is determined by the de facto situation on the ground, not the de jure constitutional arrangements of the country in question. |
| Applicant: | SZJDI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1544 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 21 November 2007 |
| Date of Last Submission: | 21 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. R. Young |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1544 of 2007
| SZJDI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh where, he claims, he was active in the Awami League. He alleges that while in Bangladesh his involvement with the Awami League led to him being arrested, detained and tortured. The applicant arrived in Australia on
14 October 2002.
The applicant claims to fear persecution in Bangladesh because of his membership of the Awami League.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
12 February 2003. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision on 1 September 2003 which was quashed by order of this Court on 25 August 2005 (Court Book (“CB”) page 313).
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 to 16 of the Tribunal’s decision (CB 310 to 322).
Protection visa application form
In his protection visa application form, the applicant made the following claims:
a)the applicant has a history of involvement in the Awami League, firstly as a student activist and then as a party worker and official. He was elected as the organising secretary of Jagira Thana Awami League and in 2000 as an executive member of the Shariatpur District Awami League;
b)during the lead up to the 2001 election Awami League leaders and activists were mistreated with the intention of favouring the Bangladeshi Nationalist party (“BNP”).
c)on 27 March 2002 one of the applicant’s friends was kidnapped by a group of BNP activists. When the applicant and his friends tried to lodge a complaint with the police they found that the police had been directed not to accept any complaints from Awami League members; and
d)the applicant and his friends protested and arranged a half day strike on 28 April 2002 but he was arrested by police, sent to court and detained for a short period. The applicant was tortured in remand and released after 20 days.
First Tribunal hearing
At the first Tribunal hearing the applicant made the following additional claims:
a)he joined the Awami league in 1986;
b)fifteen to twenty days prior to his arrest on 28 April 2002 false charges were made against him accusing him of having illegal arms and throwing bombs; and
c)this case was still pending as the BNP was still in power.
Second Tribunal hearing
At the second Tribunal hearing the applicant made the following additional claims:
a)one year after he departed for Australia, the applicant’s political opponents in Bangladesh went looking for him and injured his mother; and
b)although the BNP was no longer in government, the country was in a state of panic.
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 accepted that the applicant was an Awami League supporter and that he had been active as a local party official prior to his departure to Australia;
b)the Tribunal was prepared to accept he was detained and physically abused by local authorities loyal to the then BNP government;
c)the Tribunal was not satisfied that a “false” arms case was ever lodged against the applicant, noting that:
i)it was significant that the applicant was released and able to depart Bangladesh; and
ii)the applicant did not provide any documentary evidence of this “false” case;
d)the Tribunal accepted that Bangladesh politics were marked by considerable violence between local political supporters and further accepted that the applicant may well face harm from local supporters were he to return to his home town. However, it found that it was reasonable in the particular circumstances of the applicant for him to relocate to a large city such as Dhaka where he might live safely;
e)the Tribunal found that there was no real chance that the applicant would be pursued outside his local area by local authorities or by local political opponents, noting that:
i)the applicant had only ever been a local Awami League activist;
ii)he had been out of the country for over six years;
iii)his own evidence was that he was last sought by local opponents some five years ago; and
iv)his political opponents no longer controlled the national government; and
f)the Tribunal was not satisfied that the applicant might be at risk of harm from the current caretaker government, noting that there was no evidence before the Tribunal to suggest that the applicant, who had been outside Bangladesh for six years, would be targeted by the caretaker government.
Proceedings in this Court
The sole ground of the application was pleaded as follows:
The Tribunal constructively failed to exercise jurisdiction by finding the applicant can relocate safely to a city like Dhaka without considering the practical realities facing the applicant with respect to accommodation and care should he seek to relocate given the upheaval and turmoil besetting Bangladesh under the current caretaker government.
In reality, and as will become clear, the applicant was not actually saying that the Tribunal had failed to consider the practicality of relocation, which it is obliged to do, but that it failed to consider important information when reaching its conclusion on this issue.
The Tribunal’s conclusion that it was reasonable in the particular circumstances of the applicant for him to relocate to a large city such as Dhaka was based on information contained in a 2006 United Kingdom Home Office Guidance Note for Bangladesh. The applicant referred to paragraph 3.6.10 of the UK Home Office guidance note which stated:
Internal Relocation The Bangladesh Constitution provides for the right of free movement within the country and in practice the Government generally respected these rights, allowing citizens to move freely within the country. Although there were instances in which the Government restricted these rights, these related to the movement of major opposition political leaders and there is no indication that there are any restrictions on the movement of ordinary party members or officials. (CB 326)
The applicant submitted that this guidance note pre-dated the advent of the emergency caretaker government in Bangladesh in January 2007 and, because of this, important matters concerning the practicality of the applicant’s potential relocation within Bangladesh had not been considered. The applicant submitted that the new reality created by the emergency caretaker government replacing the BNP Government was a matter which had to be taken into account when assessing the practicalities of relocation.
In this connection, the applicant referred to a newspaper report reproduced at CB 247 recording the declaration of a state of emergency on 11 January 2007 and the suspension of all fundamental rights prescribed in the Bangladeshi Constitution, including the right to freedom of movement (CB 250). Attention was also drawn to a newspaper article reproduced at CB 258 which, amongst other things, said:
Under a state of emergency the state will not be restricted by the constitutional provisions for freedom of movement, freedom of assembly, freedom of association, freedom of thought, conscience and speech, freedom of occupation and rights to property.
Article 141 B of the constitution states: While a Proclamation of Emergency is in operation, nothing in articles 36, 37, 38, 39, 40 and 42 shall restrict the power of the State to make any law or to take any executive action which the State would, but for the provisions contained in Part III of this Constitution, be competent to make or to take, but any law so made shall, to the extent of the incompetence, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.
Article 36: Freedom of Movement
Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh.
The applicant submitted that the Tribunal could not make a finding on the practicability of relocation if it failed to consider the effect of the caretaker government and the suspension of rights of freedom of movement. It was submitted that once the constitutional right to freedom of movement was suspended then the central underpinning of the UK Home Office guidance note disappeared and the question of the practicability of relocation had to be considered afresh in the new circumstances.
However, the submissions which the applicant had made to the Tribunal were not framed in terms that suggested that the caretaker government would affect his ability to relocate. In its recounting of the proceedings before it, the Tribunal recorded the following:
The Tribunal put to him that in that case it might be reasonable and indeed prudent for him to live in Dacca [sic] rather than his hometown. He replied that his family home and business is in his hometown. The Tribunal put it to him that he is now an adult and it was no longer necessary for him to live under his father’s roof. The applicant said that in Dacca [sic] there would be supporters of his opponents in his hometown and they would be informed by his local opponent.
Mr Bitel, one of the applicant’s representatives, stated that DFAT evidence from 1993 would still be relevant as to the fact that relocation in Bangladesh would not be viable. (CB 316)
After the Tribunal hearing the applicant’s representative made written submissions to the Tribunal which included submissions on the question of relocation. The issue of the suspension of civil rights was not raised in those submissions. Rather they were based on an express submission that there had been no change of substance in Bangladesh since the comments of Ms F Volk (apparently the former second secretary of the Australian High Commission in Dhaka) to a Department of Immigration & Multicultural Affairs meeting on 2 April 1993 that internal relocation was not an option in Bangladesh. In that context, the applicant’s written submissions for the Tribunal stated that, at that time, the divisional commissioners and deputy commissioners of districts in Bangladesh remained representatives of the BNP and remained “responsible for the widespread enforcement and implementation of the BNP’s strategic and systematic harassment of individuals opposed to the BNP” such as Awami League activists.
The emphasis on the practicability of relocation draws attention to the fact that the enquiry is not so much one of the de jure constitutional arrangements in the country in question but of the de facto situation on the ground. It is also to be observed that even under the previous government prior to the emergency, the constitutional right to freedom of movement was on occasions restricted in cases of major opposition party leaders. It might be said that such leaders were “targeted” by the prior government even before the constitutional rights were suspended. Here, the Tribunal was well aware of the advent of the caretaker government and concluded that the applicant would not be “targeted” by that government.
The Tribunal’s reasons disclose that it considered the general situation in Bangladesh, based on the UK Home Office guidance note, concluded that there was no real chance that the applicant would be pursued outside his local area by local authorities or by his local political opponents and then moved on to consider whether the advent of the caretaker government had any impact on the situation. It concluded that the applicant would not be targeted by the caretaker government; which can be understood to mean that the change in government would have no impact on the applicant’s ability to relocate within Bangladesh.
Whether it was reasonably practicable for the applicant to relocate within Bangladesh was a factual matter for determination by the Tribunal. The applicant submits that the Tribunal should have approached its fact-finding role by taking into consideration a matter which had not been pressed upon it at the Tribunal hearing or subsequently. However, it is apparent that, even though the applicant did not submit that the change of government had any particular impact on his ability to relocate, the Tribunal nevertheless turned its mind to whether the existence of the caretaker government had any relevant significance for the applicant. In the exercise of its fact-finding role, the Tribunal chose to rely on the information contained in the UK Home Office guidance note and the fact that the applicant had been absent from Bangladesh for over six years to conclude that it was still practical for him to relocate within Bangladesh. This finding was open to it. It is not a function of the Court in these judicial review proceedings to reconsider the Tribunal’s findings of fact in such circumstances. As a result, no jurisdictional error has been demonstrated.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 12 December 2007
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