SZLOP v Minister for Immigration and Citizenship
[2008] FCA 1074
•24 July 2008
FEDERAL COURT OF AUSTRALIA
SZLOP v Minister for Immigration and Citizenship [2008] FCA 1074
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZLOP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD421 OF 2008
REEVES J
24 JULY 2008DARWIN
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD421 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLOP
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE OF ORDER:
24 JULY 2008
WHERE MADE:
DARWIN
THE COURT ORDERS THAT:
1.The appeal be dismissed.
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
NSD421 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLOP
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE:
24 JULY 2008
PLACE:
DARWIN
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal against the judgment of Federal Magistrate Orchiston delivered on 7 March 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal’s decision was delivered on 2 October 2007. It affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.
BACKGROUND – SUMMARY OF FACTS
The appellant is a citizen of Bangladesh. He was born in that country on 16 January 1972. He arrived in Australia on 19 December 2001 as the holder of a temporary business visa. On 8 January 2002, he lodged an application for a protection (class XA) visa with the first respondent. That application was refused by a delegate of the first respondent on 22 March 2002.
On 17 April 2002, the appellant applied to the Tribunal for a review of that decision. On 17 June 2003, the Tribunal affirmed the delegate’s decision. The appellant unsuccessfully sought judicial review of that decision in the Federal Magistrates Court and, on appeal, in this Court. When his appeal was dismissed on 5 August 2005, he then sought special leave to appeal to the High Court of Australia. Ultimately, on 28 February 2007, the High Court quashed the Tribunal’s decision by consent and ordered it to reconsider the appellant’s application according to law.
On 23 August 2007, a differently constituted Tribunal (‘the Tribunal’) conducted a hearing which the appellant attended and at which he gave oral evidence and presented arguments.
The appellant lodged a statement dated 8 January 2002 with his visa application which set out the basis of his claim to fear harm. In short, the appellant claimed that his father was a ‘renowned trade union leader’ in Bangladesh who had been involved in the War of Liberation in 1971 and after the war, had been a supporter of, and very close to, Bangabandhu Sheikh Mujibur Rahman. Thereafter his father was heavily involved in Awami politics. The appellant went on to claim that Bangabandhu Sheikh Mujibur Rahman was brutally murdered on 15 August 1975 as a group of retired army officers took control of the country. His father was arrested and remained in gaol for a number of years. After his release from gaol, he claimed that his father was involved as an organiser for the Awami League and this resulted in a lot of political enmities.
The appellant claimed that during his secondary education he became actively involved with the Charta League, which is the student wing of the Bangladesh Awami League, and eventually became the Vice President of the Charta League Committee at the secondary college he attended. After his secondary schooling, he undertook a Bachelor of Arts degree at Tejgaon College where he was also actively involved in politics and became the president of the Tejgaon College Charta League. He claims to have led many demonstrations against the Bangladeshi National Party (‘BNP’) Government of the day. He also claims to have worked for a candidate in the 1996 parliamentary elections and, while that candidate was unsuccessful, the Awami League was successful in forming the government of Bangladesh. Thereafter, he claims he became one of the leaders of the Awami League in the region where he lived and was elected joint secretary of the Bangladesh Awami League Matlab Thana Branch in 1998. In 1999 he claims he was elected the executive member of the Chadpur District of the Awami League.
In July 2001, the Awami League transferred power to a caretaker government and in October 2001, after parliamentary elections were held, the BNP was successful in forming government. During that election, the appellant claims to have worked for one of the Awami League candidates. After the election on 2 October 2001, the appellant claims his house was ransacked and looted and one of his brothers was beaten without mercy. He claims that after the BNP came to power, Awami League leaders and activists were oppressed and tortured and that many of them left the country. In late 2001, after going into hiding, the appellant claims that a number of false charges were laid against him. He was able to obtain a visa to come to Australia but he claimed that if he were to return to Bangladesh, he would be persecuted to the point where his life would be at risk.
THE TRIBUNAL’S DECISION
Prior to the hearing before the Tribunal on 23 August 2007, the appellant, through his advisor, submitted a quantity of material to the Tribunal including: a substantial amount of information on the political situation in Bangladesh; a submission prepared by the appellant’s advisor; a letter from a Dr Ratan Lal Kundu, Research Secretary of the Bangladesh Awami League Australia (Inc); and a number of documents taken from the ‘Valley of Death’ an Awami League publication.
Subsequent to the hearing, the appellant through his advisor, submitted a number of further documents including various newsletters and newspaper articles. He also submitted a statement by his brother, Mahbub Alam. Apart from this material, the Tribunal also had regard to certain country information including: an Amnesty International publication dated 10 May 2007; three BBC News reports dated between 22 August 2007 and 11 September 2007; and information obtained from the Bangladesh Electoral Commission website showing the election results for the 1996 and 2001 parliamentary elections. In its decision, the Tribunal summarised all of this material, as well as the evidence given before the previously constituted Tribunal on 19 May 2003 and the evidence given by the appellant before the Tribunal on 23 August 2007.
In his evidence before the Tribunal - in addition to giving further details about his history in Bangladesh and the events outlined in his statement in support of his visa application - the appellant also claimed that he had inadvertently introduced a police officer to a friend who was an arms dealer in Bangladesh and that this person was later arrested. The appellant claimed he was fearful that he would be harmed by this dealer. The Tribunal put to him that it considered that the connection with this man was very tenuous.
At the request of the Tribunal the appellant gave details of the election campaigns he was involved in during 1996 and 2001. During his evidence, the Tribunal put to the appellant that since the BNP was no longer in power in Bangladesh, and the Army was in control, he was at no greater risk than anyone else because of his political activities with the Awami League. The appellant responded that the caretaker government in control would ‘kill him because they were under instructions from the BNP’. On this aspect, the Tribunal records that the appellant’s advisors submitted to it that the current government would persecute the appellant because it was controlled by BNP interests.
In its ‘Findings and Reasons’, the Tribunal recorded that the appellant had put forward two claims: his fear of persecution because of his involvement with Awami League; and his fear of reprisals from the person who was arrested for arms dealing after the appellant had allegedly informed on him. The Tribunal accepted the appellant’s evidence that he had been a supporter of the Awami League since he was a student, however it had serious reservations about the level of his activities noting the various discrepancies in his evidence. The Tribunal also observed that the appellant was vague about the details of the election campaign he claimed to have been involved in. The Tribunal found that the appellant was not a high profile activist and during the lead up to the 2001 elections specifically, the Tribunal found the appellant was a low level supporter of the Awami League. The Tribunal was willing to give the appellant the benefit of the doubt and accept that his house had been ransacked and his brother beaten in October 2001, but it did not accept that these actions were a result of the appellant’s political activities.
The Tribunal therefore found that the appellant had ‘not suffered serious harm amounting to persecution in a Convention-sense in the past for the reason of his political opinion and activities on behalf of the Awami League’. The Tribunal also found that the appellant did not suffer persecution in a Convention-sense at the hands of the alleged arms dealer and it was not satisfied that there was a real chance that the appellant would be persecuted by the alleged arms dealer if he returned to Bangladesh.
In relation to the appellant’s fear of persecution by the authorities because of his political activities in Bangladesh, the Tribunal concluded that it was ‘not satisfied given the [appellant’s] relatively low political profile and the current authority’s apparently even-handed attitude to both major political parties in Bangladesh that there is a real chance that the [appellant] will be persecuted within the meaning of the Convention if he returns to Bangladesh in the foreseeable future. It is not satisfied that the [appellant] has a well-founded fear of persecution in Bangladesh.’ For these reasons, the Tribunal affirmed the delegate’s decision.
THE FEDERAL MAGISTRATE’S DECISION
In his application before the Federal Magistrates Court, the appellant put forward three grounds of review as follows:
1.The Second Respondent made jurisdictional error by assuming that claims in relation to intreats [sic] by a shopkeeper against the appellant were not Convention related.
2.The Second Respondent made jurisdictional error by assuring [sic] that an unelected dictorship pursuing targets ostensibly on the grounds of “corruption of criminal activity” could not be in reality persecution on the grounds of political opinion.
3.The Second Respondent made jurisdictional error by treating as conclusive the early [sic] of restrictions by the unelected dictatorship in Bangladesh.
In her decision, the Federal Magistrate noted (at [21] and [22]) that Mr Young, who appeared for the appellant before her, did not seek to press the first ground and indicated that the second and third grounds could be conveniently read together.
Before the Federal Magistrate, Mr Young focussed on the content of an Amnesty International report of 10 May 2007 and submitted, based on the decision of the Full Court of this Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] to [14], that the Tribunal had committed jurisdictional error in having considered the Amnesty International report, but not considering the content of that report as it was required to do. Her Honour accepted that the Tribunal’s decision did not make any direct reference to the Amnesty International report, nor to its specific content. However, her Honour was prepared to infer from the Tribunal’s general statements that it had considered the available country information, that the Tribunal had indeed considered the content of the Amnesty International report. Further, her Honour observed that the particular use the Tribunal made of the country information and the weight that it gave to it were ultimately matters for the Tribunal.
Nonetheless, her Honour did conduct a review of all of the country information before the Tribunal, including the Amnesty International report, to determine whether or not the Tribunal had committed jurisdictional error by reaching a decision that was not open to it on the material before it. After conducting that review, her Honour concluded: ‘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.’ Accordingly, her Honour rejected grounds two and three of the Application for Review and concluded that the Tribunal’s decision was not affected by jurisdictional error.
GROUNDS OF THE PRESENT APPEAL
At the hearing before me, the appellant sought leave to file an amended notice of appeal. Since this application was not opposed by the counsel for the first respondent, I granted leave. Subsequently, during submissions before me, counsel for the appellant indicated that he no longer sought to rely upon grounds one, two [twice appearing] or three of the amended notice of appeal. The remaining grounds set out in the amended notice of appeal are as follows:
4.The Federal Magistrate erred by failing to deal with the Appellant’s contention that the Second Respondent made jurisdictional error in that it accepted a report of Amnesty International but failed to take into account the contents of the report disclosing widespread level of detention and arrest in Bangladesh extending beyond “leaders and high profile members”.
5.The Federal Magistrate erred by not considering whether, consistently with the country information, the RRT must have intended or should have found that “targeted” (in the context of the authorities having not “targeted” other than very high members of the Awami League and the BNP) referred to the principal rather than the exclusive focus of the authorities.
6.Her Honour erred at [46] at AB 268 by finding that it was open to the Second Respondent to find that only leaders and high profile members of the Awami League and BNP were targeted by the authorities and even then only when they had been involved in corruption or criminal activities.
7.The Federal Magistrate erred by not finding that the Second Respondent made jurisdictional error by treating “even handed” persecutory treatment (treatment noted out equally or without discrimination by the authorities as reprisals to the members of former politically rival parties or forces) as not amounting to persecution for the purposes of the Convention.
THE CONTENTIONS
At the hearing of this appeal before me, Mr Young appeared for the appellant and Ms Sirtes appeared for the first respondent. Both counsel had earlier filed written outlines of submissions.
In his oral submissions, Mr Young submitted that the Federal Magistrate had failed to address two jurisdictional errors committed by the Tribunal in its assessment of the question whether the applicant had suffered “serious harm” in Bangladesh. He submitted both errors involved the period since 2007, when a caretaker government had taken control of Bangladesh and a State of Emergency had been declared. Mr Young submitted that the first error related to the Tribunal’s finding that “the current authorities are fairly even-handed in their reprisals against the BNP and the Awami League leaders and high profile members”. He submitted that whether or not the “reprisals” were even-handed, they still amounted to persecution and therefore the Tribunal should have concluded that members of both groups had been subjected to political persecution within the terms of the Convention. He pointed out that this alleged error is encapsulated in ground seven of the notice of appeal.
Mr Young submitted that the second error related to the Tribunal’s finding that “the independent information indicates that while the authorities have until very recently banned public 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 (page 12)”. This reference by the Tribunal to page 12 appears to be an erroneous reference to page 13, where the Tribunal referred under the heading “Country Information” to the Amnesty International report of 10 May 2007. Mr Young submitted that there was no evidence to support this finding of the Tribunal. To the contrary, he submitted that the Amnesty International report (set out at page 13 of the Tribunal’s Decision Record) states: “According to reports in Bangladesh media, more than 100,000 people have been detained, often in mass arrests, since early January”. Mr Young said this alleged error is encapsulated in grounds four to six inclusive of the notice of appeal.
Ms Sirtes began by submitting on behalf of the first respondent that the errors the appellant now raises in relation to the Tribunal’s decision were not raised before the Federal Magistrate and cannot be raised now. In response to the appellant’s submissions that “even-handed persecution” was still persecution for Convention purposes, Ms Sirtes submitted that the Tribunal’s precise finding was that there had been “reprisals against” the two groups. This, she submitted, was not a finding of political persecution, but rather a reference to part of the interim government’s campaign against corruption as detailed in the country information referred to by the Tribunal (below):
The government says elections will be held only once it has rid the country of corruption. They say that will be by the end of 2008. So far scores of politicians, businessmen and civil servants have been arrested.
Awami League leader Sheikh Hasina and BNP leader Khaleda Zia – both former Prime Ministers – face criminal charges.
It (the interim government) has banned most political activities. The interim government has arrested 150 politicians in what it says is a crackdown on corruption.
Further, Ms Sirtes submitted that there was ample evidence to support the Tribunal’s conclusion that only high profile members of the Awami League had been targeted by the interim government. She pointed to the contents of the three BBC News reports which the Tribunal set out in its decision record. She submitted that these demonstrated that the campaign of arrests carried out by the interim government was directed to “identities”, “leaders” and “senior politicians” of both political parties. Ms Sirtes submitted that the Tribunal’s conclusion was therefore open to it on the material, and its assessment of that material including the weight it gave to various aspects of it was a matter for the Tribunal, referring to the Full Court’s decision in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (‘NAHI’), particularly at [13] to [14].
In reply to Ms Sirtes’ submissions that the Tribunal referred to “reprisals” rather than persecution, Mr Young submitted that read in context, the word “reprisals’ means actions taken for political reasons and therefore the Tribunal was plainly referring to political persecution.
The written outline of submissions earlier filed by the first respondent was directed to grounds of appeal one to three inclusive which were subsequently abandoned by the appellant. They do not, therefore, deal with the amended grounds of appeal (four to seven inclusive) that the appellant now relies upon. For his part, the appellant’s written outline of submissions is to the same general effect as his oral submissions (above).
CONSIDERATION
As I pointed out to Ms Sirtes during her oral submissions, the time for raising an objection to the appellant’s grounds of appeal, on the basis that they had not been raised with the Federal Magistrate, was at the time when the appellant sought leave to amend the notice of appeal to add those grounds. Since the first respondent did not object to leave being granted at that time, it was too late to object once the amended grounds were properly before the Court.
The appellant’s amended grounds of appeal essentially raise two questions as follows:
a)whether the even-handed “reprisals” against both the Awami League and the BNP could still amount to political persecution for the purposes of the Convention; and
b)whether the Tribunal’s conclusion that only high profile members of the Awami League were targeted by the authorities in Bangladesh was a conclusion that was open on the evidence.
In my opinion, there is evidence in the three BBC News reports quoted at length in the Tribunal’s decision record, from which the Tribunal could conclude that the interim government’s campaign of arrests or “reprisals” was only directed to high profile members of the Awami League. That evidence includes references to “identities”, “leaders” and “senior politicians” in the three BBC News reports. The fact that the Amnesty International report relied upon by the appellant may have suggested that the arrests were wide-spread and not directed to any particular group, is not to the point. As the Full Court of this Court said in NAHI at [13], referring to a situation similar to the present case:
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 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. [my emphasis]
Furthermore the Tribunal was not required to explain why it may have disregarded the Amnesty International report, as the Full Court observed in NAHI (at [14]):
The Tribunal was not obliged to comment on every item of material … before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than other items.
The Tribunal has therefore not committed any error, let alone a jurisdictional error, in coming to the conclusion that it did based upon the country information it referred to in its Decision Record. I therefore agree with the conclusion the Federal Magistrate reached on this point at [46] of her reasons for decision.
Since the Tribunal also found that the appellant had a ‘relatively low political profile’ (another finding of fact that was open on the evidence) it followed that the appellant was not a member of the groups against which the Tribunal found the “reprisals” were directed. It is therefore unnecessary to decide whether the even-handed nature of the “reprisals” against both the Awami League and the BNP amounted to persecution for the purposes of the Convention.
For these reasons, this appeal must be dismissed.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 24 July 2008
Counsel for the Appellant: In person Solicitor for the Respondents: Clayton Utz Counsel for the First Appellant: Ms S A Sirtes
Date of Hearing: 17 June 2008 Date of Judgment: 24 July 2008
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