SZLOP v Minister for Immigration
[2008] FMCA 259
•7 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLOP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 259 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – whether Tribunal’s conclusions open to it on the basis of particular country information. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 474 |
| NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323 S395/2002 v Minister for Immigration and Multicultural Affairs [2003] 216 CLR 473 |
| First Applicant: | SZLOP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3357 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 1 February 2008 |
| Date of Last Submission: | 1 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 7 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. R. Young |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application filed 30 October 2007 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5000 payable within five (5) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3357 of 2007
| SZLOP |
First Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) signed on 27 September 2007 and notified to the applicant by letter dated 2 October 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a protection visa to the applicant.
Background
The applicant was born on 16 January 1972 and was aged 29 years at the time of his application for a protection visa.
The applicant is a citizen of Bangladesh.
The applicant arrived in Australia on 19 December 2001 on a Bangladeshi passport issued in his own name, holding a temporary business visa.
The applicant lodged an application for a protection visa on 4 January 2002 on the basis that his life was in danger due to his and his family’s involvement in political parties that opposed the Bangladeshi National Party (BNP) and that they have been threatened by BNP supporters and government authorities (Court Book (CB) 27-29).
On 21 March 2002 the delegate refused to grant the applicant’s protection visa (CB 46-52) on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 17 April 2002, the applicant applied to the Tribunal, differently constituted, (the first Tribunal), for review of the delegate's decision. On 17 June 2003, the first Tribunal affirmed the delegate's decision to refuse the applicant a protection visa. The applicant sought judicial review from this decision. On 28 February 2007, the High Court, by consent, quashed the first Tribunal's decision and ordered the Refugee Review Tribunal to reconsider the matter (Proceedings S4 of 2007)(CB 57).
On 23 August 2007, the applicant appeared before the Tribunal to give oral evidence and present arguments. On 2 October 2007, the Tribunal handed down its decision affirming the delegate's decision not to grant the applicant a protection visa (CB 232-251).
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 14 August 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 23 August 2007 to give oral evidence and present arguments (CB 149-150). The applicant appeared, represented by his registered migration agent.
The applicant’s claims and evidence (CB 235 – 247)
The applicant claims to fear persecution in Bangladesh due to his involvement with the Awami League. He claims that:
·his father was a "freedom fighter who fought for the nation" and was involved with the Awami League. As a result of his father's involvement, the applicant's family made political enemies
·he joined the Chattra League (CL), the student wing of the Awami League, and became vice president in 1993. He organised processions, strikes, meetings and rallies and was involved in enrolment and election campaigns
·he participated in demonstrations aimed at ousting the BNP
·after the Awami League came to power in 1996, he was involved in many development projects and gained the Awami League’s support for the local cottage industry
·in 2001, after the Awami League’s tenure ended, the applicant's house was "ransacked and looted" and his brother was "beaten mercilessly". The BNP government oppressed and tortured Awami League leaders and activists
·false cases were laid against him
·he inadvertently introduced a police officer to a shop-keeper friend who smuggled arms. The shop-keeper friend was arrested and jailed for 6 months and would seek revenge against him if he returned to Bangladesh
·the current Bangladeshi caretaker government, which was installed following a declaration of emergency on 11 January 2007, is a front for the BNP. The applicant will be persecuted if he returns to Bangladesh.
The Tribunal’s findings and reasons (CB 247-251)
So far as is relevant to the grounds of review, I accept that the first respondent has accurately summarised as follows the Tribunal’s findings and reasons at paragraphs 8-9 of its written submission in regard to the applicant’s political profile:
The Tribunal accepted that the applicant was a supporter of the AL [Awami League] and the CL. However, it did not accept that he was a high profile activist because:
(a)he had a very superficial knowledge of the AL’s aims and policies;
(b)he provided inconsistent evidence in the two Tribunal hearings regarding his claimed involvement in various development projects of the AL; and
(c)the applicant agreed [with the Tribunal at the Tribunal hearing in May 2003] that he was not a high profile or prominent person within the CL or the AL.
Accordingly, the Tribunal found that the applicant was a "low level supporter" of the AL who had performed minor tasks on its behalf.
The relevant passage from the Tribunal’s findings and reasons (CB 250) referring to country information states that:
In relation to the applicant's fear of persecution by the authorities and his political opponents in Bangladesh, the Tribunal has considered the available country information as well as the applicant's evidence. It has also taken into account country information submitted by the applicant through his adviser. The Tribunal has found that while the applicant was and is a supporter of the Awami league in its various organizational forms, he has not suffered serious harm in the past, and was and is not a high profile member of the party or a prominent activist. While the applicant's brother had some involvement with the Awami League, at perhaps a more high profile level than the applicant, it does not accept that there is a real chance that the applicant will be persecuted for reason of his relationship with his brother because of the current situation in Bangladesh. The country information, on a fair-minded reading, indicates that the current authorities are fairly even-handed in their reprisals against both the BNP and the Awami League leaders and high profile members. Their motivation for this is interpreted according to the political perspective of the writers, but none of them unequivocally says that the current ruling body is effectively a front for the BNP, as was claimed at the Tribunal hearing. The independent information indicates that while the authorities have until recently banned political activities of any kind, they have not targeted other than very high profile members of the Awami League, the BNP or their affiliates. Those AL members they have pursued appear to have been targeted because of corruption or criminal activity. The very recent easing of restrictions on political activity has been welcomed by, among others, the Awami League's acting President. In those circumstances, the Tribunal does not accept that the authorities would allow, let alone condone, any aggression against the applicant by his political opponents, nor does it accept that the applicant would be harmed by reason of his political opinion by the Bangladeshi authorities. The Tribunal is not satisfied, given the applicant's relatively low political profile, and the current authorities' apparently even-handed attitude to both political parties in Bangladesh, that there is a real chance that the applicant will be persecuted within the meaning of the Convention if he returns to Bangladesh in the foreseeable future. It is not satisfied that the applicant has a well-founded fear of persecution in Bangladesh.
In conclusion, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.
The proceedings before this Court
The applicant filed the application in this Court on 30 October 2007 setting out 3 grounds for review of the Tribunal’s decision.
Mr Young, counsel for the applicant, appeared at the hearing before the Court on 1 February 2008. Ms Kantaria appeared for the first respondent.
Grounds of application
i)The Second Respondent made jurisdictional error by assuming that claims in relation to threats by a shopkeeper against the applicant were not Convention related
ii)The Second Respondent made jurisdictional error by assuring that an unelected dictatorship pursuing targets ostensively on the grounds of “corruption or criminal activity” could not be in reality persecution on the grounds of political opinion
iii)The Second Respondent made jurisdictional error by treating as conclusive the early of restrictions by the unelected dictatorship in Bangladesh.
Ground 1 of the application
Mr Young indicated to the Court that the applicant did not press ground 1 of the application.
Grounds 2 and 3 of the application
Mr Young indicated at the outset that grounds 2 and 3 may be more conveniently read together, as they both deal with the treatment by the Tribunal of the current political situation in Bangladesh.
He submitted in this regard that the Tribunal made a jurisdictional error in failing to consider an inference about the level of suppression of political activity and political persecution in Bangladesh which was reasonably open to it from the Amnesty International report of 10 May 2007, (at CB 244), which would have strengthened the applicant's case before the Tribunal in that it was directly relevant to whether the applicant stood a real chance of persecution if he returned to Bangladesh.
The relevant extract from the Amnesty International report of 10 May 2007 (the AI report) states that:
On 11 January 2007 the [President of Bangladesh] declared a state of emergency following weeks of violent election-related clashes between the supporters of the former ruling coalition and supporters of parties opposing them. Elections scheduled for 22 January 2007 were postponed indefinitely and a new civilian Caretaker government, backed by the army, sworn in. Under the Emergency, political rallies and other political activity were banned, and some restrictions were imposed on the rights to freedom of expression.
According to reports in the Bangladesh media, more than 100,000 people have been detained, often in mass arrests, since early January [2007]. Arrests, usually conducted by army personnel, are on grounds of alleged corruption or criminal activity. Many of the detainees are believed to have been released but Amnesty International has not been able to establish the total number of those who remain in detention. Among the detainees are reportedly more than 150 politicians and businessmen arrested on charges of corruption.
In support of his submission, Mr Young referred the Court to the Full Federal Court decision in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 to submit that:
In that case [NAHI] the Tribunal accepted certain pieces of country information and it then considered whether, on what it had accepted, there was a real chance of persecution. That is precisely the complaint of the applicant in this case, that having accepted the Amnesty International report, the Tribunal did not undertake the required consideration of whether there was a real chance of persecution based on the evidence which the Tribunal accepted (transcript 1/2/08 p17).
Mr Young cited the following statement in NAHI at [13] in support of his submission:
It is clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.
On this basis, he further submitted that:
What NAHI makes clear is that while it is for the Tribunal to consider which parts of the country information it accepts and which it does not accept, where it does accept country information and there is a jurisdictional issue thrown up by that in relation to the real chance of persecution, then that is the question which the Tribunal must consider and, in my submission, did not consider (transcript, 1/2/08, p18).
In response, the first respondent relied on the remarks in NAHI at [11], that:
There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
I accept that the relevant passage from the Tribunal’s findings and reasons, concerning country information (quoted in full at paragraph [17] above), makes no direct reference to the AI report, nor to its specific contents. Equally, however, the Tribunal has not singled out or referred specifically to any of the country information it says that it has considered.
Mr Young referred the Court to the general observations by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323 on the obligations of a Tribunal to set out its findings, and what inferences may be drawn from the content of those findings:
The requirement imposed by s.430 is to prepare a written statement that, in the context of setting out the Tribunal's reasons for decision, "sets out the findings" on any material questions of fact. It is impossible to read the expression "the findings" as meaning anything other than the findings which the Tribunal has made. By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s.476(1) other than s.476(1)(a), or may provide some other ground for judicial review. There may be cases where it is proper to conclude that the Tribunal has not set out all its findings. The consequences that might follow are not presently in issue (at [10]).
The corollary to the construction of s.430(1)(c) of the Act set out above is that it is to be inferred from the absence of a reference to, or, a finding with respect to some particular matter that the Tribunal did not consider that matter to be material (at [35]).
It is not necessary to read s.430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s.430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s.430 statement was not considered by the Tribunal to be material… The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration (at [69]).
These general principles are reinforced in the specific context of country information in NAHI at [14]:
The Tribunal was not obliged to comment on every item of material [in the country information] before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item.
Applying these principles to the present case, I consider that the Tribunal’s failure to refer specifically in its Findings and Reasons to the AI report and its contents, is not to say that it did not consider them. The Tribunal states generally in this regard that “in relation to the applicant's fear of persecution by the authorities and his political opponents in Bangladesh, the Tribunal has considered the available country information as well as the applicant's evidence. It has also taken into account country information submitted by the applicant through his adviser.” I consider that the Court can infer from this that the Tribunal gave consideration to all the available country information, including the AI report.Indeed Mr Young accepts that this is the case.
Whether or not to use any particular country information, the accuracy of any country information used, and the weight to be given to it, are ultimately matters for the Tribunal, and not generally open to review by the Court: (NAHI at [11]). A Tribunal may engage in jurisdictional error, however, if it reaches a decision that is not open to it on the basis of the material before it.
The question therefore in this case is whether the Tribunal’s conclusions drawn from country information, in particular in the light of the AI report, were open to it on the material available to it. As positively stated in NAHI at [13], in this regard:
It is clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used.
Firstly, I consider that the Court must carefully scrutinise all the country information available to the Tribunal in determining whether the Tribunal has fallen into jurisdictional error, as is asserted by the applicant. I do not consider that the AI report can be taken in isolation and singled out in this case in the way that Mr Young suggests. It is clear that the country information before the Tribunal presented an evolving political situation which was not static and hence not referrable to one AI report published some 4 months before the handing down of the Tribunal’s decision. The Tribunal was obliged to reach its conclusions about the level of suppression of political activity and political persecution in Bangladesh, and hence whether there was a real chance of persecution of the applicant if he returned to Bangladesh, based on its consideration of all the country information and attributing what weight it considered appropriate to different pieces.
The country information referred to in the Tribunal decision is as follows:
·the Amnesty International report of 10 May 2007 [quoted in full at paragraph [24] above)
·a BBC News report of 22 August
·a BBC News report of 3 September
·a BBC News report of 11 September 2007, and
·voting information from the Bangladesh Electoral Commission (CB 244-247).
The three BBC News reports, published subsequent to the AI report, indicate that certain political developments took place in Bangladesh from mid 2007. For instance, The BBC News report of 22 August 2007 (CB 244-246) indicates that political parties were still prevented from holding meetings in Bangladesh. It also reported:
a vigorous drive against corruption [in which ] so far scores of politicians, businessmen and civil servants have been arrested (emphasis added).
This BBC News report also quoted the Chief of the Bangladesh Anti-Corruption Commission as saying to the BBC in July that:
some 200 people had been questioned or detained awaiting trial so far (emphasis added).
The report further states that:
[the government] has not only prevented political parties from holding meetings but has also launched a vigorous drive against corruption … correspondents say the problem [of corruption] is so deep rooted that it [the Government] will not have the time to clean things up before the elections promised by the end of 2008.
The Tribunal also included in the country information a statement that “a curfew imposed by the government on 22 August 2007, was reported to have been lifted on 27 August 2007” (CB 246).
The BBC News report of 3 September 2007 (CB 246-247) stated that:
The interim government has arrested 150 politicians in what it says is a crackdown on corruption.
I note that the earlier AI report raised this issue of “politicians…[being] arrested on charges of corruption”. I consider that it was open to the Tribunal to infer from this BBC News report that the government was continuing to arrest politicians on this basis.
The BBC News report of 11 September 2007 (CB 247) referred to significant recent changes that had taken place in Bangladesh, indicating an easing of restrictions on political expression:
Political parties in Bangladesh have reopened their offices after the interim government announced easing of an eight-month ban on politics. The interim government has said that parties can now hold meetings in community centres, offices, halls or hotels, but not in the open.
This 11 September report also included the following quote from the Acting President of the Awani League:
We welcome it. It's a right move and we feel assured.
The report also stated that:
Other major parties were also upbeat about the government's decision and said they had restarted work.
In regard to arrests, the report stated:
The military-backed interim government has ruled Bangladesh since January using emergency powers. Hundreds of politicians, including two former prime ministers…..have been arrested on corruption charges. The interim government says that elections cannot be held until corruption is tackled.
The Tribunal’s decision demonstrates that, whilst it does not refer specifically to any particular source of country information in making its findings, it clearly considered the available material in reaching its decision. The fact that its focus was on the more recent situation demonstrates that it took into consideration the evolving nature of the political situation and the current situation as at the time of making its decision in September 2007, being some 8 months after the January declaration of emergency, and some 4 months after the AI report was reported.
The Tribunal made clear reference, in these circumstances, to “the current authorities [being] fairly even-handed in their reprisals against both the BNP and the Awami League leaders and high profile leaders”; to “the authorities hav[ing] until recently banned political activities of any kind; and to the “very recent easing of restrictions on political activity” which has been “welcomed by, among others, the Awami League’s acting President”.
I consider that it was open to the Tribunal to find on this material that there had been some lessening of the volatility of events since the state of emergency had been declared in January 2007 and that the current focus of the authorities was on targeting high profile political corruption while easing restrictions on political activity.
It is also highly pertinent in this case that the country information cannot be considered in isolation from the Tribunal’s findings in regard to the applicant’s personal political profile. In this context, and on the applicant’s own admission, the Tribunal found that the applicant “was and is not a high profile member of the party or a prominent activist” and that he had a “relatively low political profile”.
The Tribunal found that only “leaders and high profile members” were being targeted by the authorities and even then where they have been involved in “corruption or criminal activity” (of which there appears to be no suggestion of the applicant having been so involved). The Tribunal found that:
the country information, on a fair-minded reading indicates that the current authorities are fairly even-handed in their reprisals against both the BNP and the Awami League leaders and high profile members… … they [the authorities] have not targeted other than very high profile members of the Awami League, the BNP or their affiliates. Those Awami League members they have been pursued appear to have been targeted because of corruption or criminal activity.
I consider that these conclusions in relation to country information were open to the Tribunal on the evidence before it.
It was thus against this context, of the general political situation in Bangladesh, and the specific political profile of the applicant, that the Tribunal reached its conclusions that it was not able to be satisfied that:
given the applicant's relatively low political profile, and the current authorities' apparently even-handed attitude to both political parties in Bangladesh, that there is a real chance that the applicant will be persecuted within the meaning of the Convention if he returns to Bangladesh in the foreseeable future. It is not satisfied that the applicant has a well-founded fear of persecution in Bangladesh.
I consider therefore, on the basis of all the country information, that it was open to the Tribunal to reach the conclusions that it did and that it performed the task required of it in accordance with law.
Mr Young also submitted that where criminal laws or processes might be used to oppress political activity or opinion, the Tribunal must look at the underlying reasons for those processes and whether they serve a legitimate object of the country: S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 at [45]. However, given the Tribunal’s conclusions in regard to the political situation in Bangladesh and its implications for the applicant, as well as the Court’s conclusion that the Tribunal has not engaged in jurisdictional error in reaching those conclusions, I consider that this issue does not arise for consideration.
Accordingly, for the reasons stated above, grounds 2 and 3 of the application are rejected.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application before this Court is dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 7 March 2008
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