SZMAP v Minister for Immigration
[2008] FMCA 838
•4 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMAP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 838 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – whether the Tribunal overlooked an element of the applicant’s claims considered – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A |
| Applicant WAEE v Minister for Immigration [2003] FCAFC 184 VQAB v Minister for Immigration [2004] FCAFC 104 |
| Applicant: | SZMAP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG599 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 23 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Dr J Azzi |
| Counsel for the Respondents: | Mr D Godwin |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG599 of 2008
| SZMAP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 19 February 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and had made claims of political persecution. The following statement of background facts is derived from written submissions filed on behalf of the Minister on 13 June 2008 and submissions filed on behalf of the applicant on 17 June 2008.
The applicant is a national of Bangladesh born in 1980 who arrived in Australia on 5 October 2006 and applied for a protection visa on
3 August 2007.
In his application for a visa (CB 35-37) the applicant claimed that at college he became a member of the student wing of the BNP.
On 10 June 1998 he was attacked by a group of Awami League cadres. In 1999 he was elected as president of his college committee of the BNP youth wing. On 16 February 1999 he was attacked by a group of Jubo League activists. After leaving college he continued his BNP political involvement. In 2005 he became a member of the executive of the BNP Noakhali District Committee. On 27 June 2006 Awami League activists lodged a false case against him. On 4 October 2006 he left Bangladesh on a false passport. The BNP government handed power to a caretaker government on 11 January 2007 and a state of emergency was proclaimed. The applicant claimed 200,000 political activists had been arrested.
Delegate’s decision
On 27 September 2007 a delegate of the Minister refused to grant a visa, finding that the applicant’s fear of persecution for the reason of his political opinion was not well-founded.
The delegate observed (CB 52) that the Awami League was in power when the applicant alleged he had suffered harm (1999). The applicant claimed to fear persecution from the Awami League in 2006 when the BNP were in power, however the delegate found that the authorities would have given him effective protection. The delegate observed (at CB 54) that the applicant had not claimed to have been involved in any extremist or violent activities and he had not indicated to have undertaken any political activities in Australia. The delegate set out at CB 51-52 country information concerning the anti corruption drive by the caretaker government.
On 15 October 2007 the applicant applied for review of the delegate’s decision.
The Tribunal
On 15 December 2007 the applicant’s adviser provided a letter dated 1 November 2007 from the President of the Naokhali branch of the BNP supporting the applicant (CB69) stating that the applicant was an “active voice” of the BNP and held various positions at the Thana and district levels and that “he was elected a member of the district Executive Committee of Noakhali district BNP in 2005” (CB 69). On 17 December 2007 the adviser filed a submission (CB 70-74). The adviser noted that a caretaker government was installed in Bangladesh and on 11 January 2007 a state of emergency was declared. The applicant’s adviser claimed the current caretaker government has been arresting people in the name of fighting corruption and has also targeted the BNP, its leaders and activists “to torture them and disqualify them for the next election” (CB 74).
The Tribunal held a hearing on 18 December 2007 at which the applicant gave evidence and presented arguments. The Tribunal in its reasons does not record any claim by the applicant of any political activity in Australia.
According to its reasons the Tribunal probed the applicant at length about the issues which became the reasons for it rejecting the applicant’s claims of engaging in any high level political activity or holding political party office since 1999. These were:
a)His knowledge about the BNP was very general despite his claim to have held various positions in the party over a lengthy period of time.
b)He claimed at the hearing that 6 months before departing Bangladesh he moved from his home to Dhaka to live at a friend’s house. This was inconsistent with his protection visa application which stated that he was at the same address from January 1991 until shortly before his departure.
c)The Tribunal records that it asked the applicant if anything happened to him after 1999. The applicant did not identify anything. The Tribunal then put to him that in his statement the applicant alleged that a false case had been filed against him. The applicant was unable to explain when the case was filed against him or why it was filed when the BNP was in power. The applicant then claimed that he did not find out about the case until he came to Australia. The Tribunal then pointed out that he claimed that the case had been filed in June 2006 while he was still in Bangladesh.
d)The fact that the applicant had not applied for a protection visa until he had been in Australia for approximately 10 months.
On 3 January 2008 the Tribunal sent the applicant an invitation to comment upon the last three of these issues in writing (CB 111-114). The invitation also set out country information which the Tribunal claimed might undermine the plausibility of the applicant’s claims that he would suffer persecution at the hands of his political opponents or the caretaker government if he returned to Bangladesh.
The applicant’s adviser responded to the invitation on 17 January 2008 (CB 118-120). In relation to the first two issues the response claimed that:
a)the inconsistency about where the applicant lived arose from the different forms of questions asked on different occasions;
b)the failure to recall the date of the charge arose from nervousness.
The response made no reference to the applicant’s delay in lodging a protection visa application.
The response then addressed the country information in the Tribunal’s invitation. It alleged that some of it was out of date. It alleged that the fact that the caretaker government was cracking down on political parties under played the seriousness of the situation faced by ordinary party workers. It asserted that the caretaker government was particularly severe on people it considered had been involved in agitating against it in foreign countries. For this reason the length of time the applicant had been in Australia added to his exposure of risk as he “had a profile of sufficient important that there will be a real chance that he will be persecuted in Bangladesh by the caretaker government”.
The Tribunal found the applicant’s claims to have been other than a low level member of the BNP not to be credible. Accordingly, the Tribunal also did not accept that the applicant was a leader or high level BNP activist with any significant political profile in his locality, district or any other level. The Tribunal concluded that the independent information before it suggested that politically motivated violence had all but disappeared since the caretaker government had come into power. Thus the applicant would not be persecuted by his political opponents. As for the applicant’s fear of persecution by the caretaker government, the Tribunal accepted country information that only very high profile members of the BNP, the Awami League and their affiliates had been targeted by the authorities. Given the applicant’s low political profile it was not satisfied that the applicant faced a real chance of persecution by the authorities.
The application
These proceedings began with a show cause application filed on 13 March 2008. The application was amended on 4 June 2008 and was further amended orally by counsel for the applicant at the trial of the matter on 23 June 2008. In its final form the further amended application contains the following single ground:
1.The Tribunal committed jurisdictional error of law by failing to consider an integer of the applicant’s claim.
Particulars
(a) In his response to the Tribunal’s s.424A letter, the applicant, through his adviser, said (CB 139 at 8) “…the caretaker government is particularly severe on those people that the Government considers may have been involved in agitating against it in other countries”.
(b) Notwithstanding its adverse findings on the applicant’s credit, the Tribunal nevertheless accepted that the “applicant was a low level member of the BNP party in Bangladesh …[and] that he was assaulted on two separate occasions in the late 1990s” (CB 142.9).
(c) In the preceding circumstances the Tribunal committed jurisdictional error by failing to consider the particular social group.
An affidavit by the applicant filed with his original show cause application was not read. I have before me as evidence the court book filed on 16 April 2008.
Submissions
Counsel for the applicant submits that the Tribunal erred by failing to consider a particular social group claim arising from the material that required consideration. Counsel submits that the Tribunal needed to consider whether the applicant, as a member of a class of persons absent from Bangladesh for a considerable period of time and with a former political profile in Bangladesh, would be at risk of serious harm from the caretaker government in Bangladesh should he return there. Counsel submits that the Tribunal neglected to consider whether the applicant would be harmed as a perceived agitator returning from abroad.
Counsel for the Minister relevantly makes the following submissions:
The applicant is now claiming that the [Tribunal] has failed to consider a claim that he was a member of a particular social group, which has been characterised as “a member of the BNP who had been abroad for a considerable period of time”.
…
It is submitted that the social group which has now been postulated was not required to be specifically addressed because:
· Firstly, the only material which the applicant points to as constituting the claim is the submission of the adviser at CB 120. The substance of this submission was that the caretaker government was severe in respect of persons it considered had been involved in agitating against it in foreign countries. However, as the applicant did not claim to have been such an agitator, the adviser’s argument appears to have been that his high political profile would create a suspicion that he was such an agitator. Given that the Tribunal did not believe that the applicant had the political profile he claimed, there was no need for it to consider a claim which depended upon such a profile. …
· Secondly, the applicant’s case was that he had a high political profile. The adviser’s submission was in support of that case and the reference to the significance of the applicant’s absence overseas was prefaced by the sentence “the applicant had a profile of sufficient important that there will be a real chance that he will be persecuted by the Caretaker Government…”. The adviser’s submission did not suggest that ordinary BNP members who had been overseas for an extended period of time were being suspected by the caretaker Government for that reason. There was no reason why the RRT would infer that the letter was making a general claim that all BNP supporters, irrespective of their profile, would be targeted by the caretaker government as agitators if they had been overseas for an extended period of time. Nor was there any supporting material upon which it might have been reasonable for the Tribunal to have inferred such a claim. Contrary to what is implicit in paragraphs 26 and 27 of the applicant’s submissions there was no obligation upon the Tribunal to seek out such information. It is for the applicant to advance whatever evidence or argument he may wish to advance before the Tribunal and for the Tribunal to decide whether this claim has been made out (see per Gummow and Heydon JJ in Re Ruddock Ex parte Applicant S154/2002 (2003) 201 ALR 437 at[57]-[58]) (emphasis retained)
· Thirdly, … the claim was not articulated clearly upon established facts.
Consideration
The issue for consideration arises from the applicant’s representative’s response to the s.424A invitation sent to him. Relevantly, that response was[1]:
5. The caretaker government in its crackdowns has been arresting officials of all parties and even murdering them. The fact that the political parties are not able to engage in political activity against each other does no[t] negate the fact that the political parties including the BNP are being persecuted by the current caretaker Government. The DFAT report is unable to comprehend the seriousness of the situation on the ground being faced everyday by the political workers and general public. It is the equivalent of saying that the fascists made the trains run on time. The report says that corruption is being addressed but it ignores that people are being falsely arrested and persecuted and even murdered by the caretaker Government.
6. In a completely repressed state, there will be no political activity. The DFAT report suggests that, this is a good thing even [if] it means all of [t]he previous political leaders are persecuted or murdered.
7.The applicant had a profile of sufficient [importance] that there will be a real chance that he will be persecuted in Bangladesh by the Caretaker government the extent of the Crackdown. The fact that applicant had been for a considerable time in Australia would add to his exposure of a risk of harm.
8.This is because the caretaker government is particularly severe on those people that the Government considers [may] have been involved in agitating against it in other countries.
[1] CB 139
As such we believe the applicant [will] be persecuted upon returning to Bangladesh.
…
This was not, in my view, expressed to be a particular social group claim and neither does a particular social group claim arise from it. The applicant’s claim was one of a fear of political persecution. The representative’s submission did not point to a different Convention basis for the applicant’s fear. It simply pointed to an additional factor in relation to the claimed fear that the Tribunal should consider. The claim remained one of a fear of political persecution.
Relevantly, the Tribunal dealt with the applicant’s claims, including the additional factor raised by the applicant’s representative, in the following way[2]:
That said, the Tribunal is prepared to accept that the applicant was a low level member of the BNP in Bangladesh. The Tribunal is also prepared to accept that he was assaulted on two separate occasions in the late 1990s. Apart from the false case and the threats, claims which the Tribunal has already rejected, the applicant did not claim to have suffered any other harm in the following seven years that he remained in Bangladesh. This suggests that the applicant’s chance of facing harm at the hands of his political opponents is remote. This view is strengthened by the independent information before the Tribunal in relation to the changes in Bangladesh’s political landscape. As it was put to the applicant at the hearing and in the Tribunal’s s.424A letter, DFAT has advised that politically-motivated violence has all but disappeared under the Caretaker Government presently in power in Bangladesh. As it was put to him, DFAT has advised that the political persecution of opponents which has been practised in the past by both the BNP and the Awami League has ceased under the State of Emergency which has deprived all parties of the machinery of state which they had used corruptly for political persecution and personal vendetta conducted in the name of politics (DFAT Report 636, dated 3 may 2007). The applicant commented that ever since taking power, the Caretaker Government has arrested 200,000 people, including leaders and high level activist. His representative, in his post hearing response, also stated that the Caretaker Government in its crackdowns has been arresting officials of all parties and even murdering them. He stated the fact that political parties are not able to engage in political activity against each other does not negate the fact that political parties including the BNP are being persecuted by the current Caretaker Government. These comments do not affect DFAT’s assessment regarding the disappearance of politically-motivated violence in Bangladesh. Having regard to that advice, the Tribunal does not accept that that there is a real chance that the applicant will be harassed, attacked, tortured, killed or otherwise persecuted by political opponents for reasons of his political opinion if he returns to Bangladesh.
As it was put to the applicant at the hearing, the independent information before the Tribunal indicates that the authorities have not targeted other than very high profile members of the BNP, the Awami League or their affiliates. The party members they have pursued appear to have been targeted because of corruption or criminal activity. At the hearing, the applicant’s representative stated that only 60 or70 “top leaders” have been arrested and that the rest of those arrested are activists from Thana and district levels. When it was put to him that the information consulted by the Tribunal did not suggest this to be the case, he said he would provide information or evidence to support this claim. He also claimed that he had read somewhere that the new regime had a hidden agenda of targeting both the BNP and the Awami League. Neither the applicant nor his representative provided any evidence to back these claims. The Tribunal has rejected the applicant’s claims of being a leader or a high level member of the BNP and does not accept that he had a significant political profile in his locality, district or at any other level. The Tribunal prefers the independent evidence referred to above and is not satisfied, given the applicant’s low political profile, 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.
The applicant and his representative also referred to the restrictions imposed on political activity as part of the State of emergency. However, the Tribunal considers that in the context of the situation in Bangladesh these restrictions are appropriate and adapted to achieving a legitimate object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens. As referred to above, the political persecution of opponents has ceased under the State of Emergency which has deprived all parties of the machinery of state which they had used corruptly for political persecution and personal vendettas conducted in the name of politics (DFAT, 3 may 2007). The Tribunal does not accept on the evidence before it that the restrictions on political activity imposed as part of the State of Emergency in Bangladesh constitute such an infringement of political freedom as to lead to the conclusion that there is a real chance that the applicant will face persecution involving ‘serious harm’ as required by paragraph 91R(1)(b) of the Act by virtue of his inability to engage in political activity at the same level he was previously engaged in for the duration of the State of Emergency if he returns to Bangladesh now or in the reasonably foreseeable future.
Overall, based on the evidence before it, the Tribunal is satisfied that the applicant’s fear of persecution in Bangladesh for the reason of his political opinion is not well-founded. He is not a refugee.
[2] CB 142-143
In my view, there can be no doubt that the Tribunal considered all of the applicant’s claims, including the suggestion raised by the representative in response to the s.424A letter, that the applicant would be at risk as a suspected agitator. This was not a separate claim but merely an additional evidentiary assertion. While the Tribunal did not deal expressly with the suggestion that persons absent from Bangladesh for a significant period might be harmed as opponents of the present regime should they return, that suggestion was dealt with by reasoning of greater generality in the Tribunal’s reasons[3]. There was nothing before the Tribunal to suggest that anyone returning to Bangladesh from overseas after a considerable absence would be suspected of being an agitator. Logically, something more was required. If the applicant had actually been involved in activities in Australia agitating against the present Bangladesh regime then that would have been a relevant factor. If the applicant had had a sufficiently high political profile in Bangladesh as to be regarded as a regime opponent of significance on his return, that would also have been a significant factor. If the applicant had intended to agitate against the present regime on return to Bangladesh that would also have been significant. However, there was no evidence that the applicant had been involved in any agitation against the regime while outside Bangladesh or that he intended to agitate on his return there. The Tribunal found that the applicant did not have a political profile of significance. It was, in my view, inherent in that reasoning that the applicant’s fear of being suspected as an agitator upon his return was not well-founded.
[3] VQAB v Minister for Immigration [2004] FCAFC 104 at [25] and [31]; Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [46]-[47].
That is not to say that the Tribunal’s decision was necessarily the correct or preferable decision on the merits. That is beyond the scope of this proceeding. A different presiding member might have made a different decision. Many would not agree that the suppression of fundamental human rights and freedoms, including involvement in normal democratic political activity, was a measure to “protect or promote the general welfare of the State or its citizens”. Such assertions are often made by dictatorial regimes. Country information before the Tribunal indicated that, as a result of the oppressive measures taken by the so called caretaker government, Bangladesh is now relatively free from politically motivated violence by members of political parties. The applicant’s representative asserted, however, that the cost had been the arrest of some 200,000 people and the suppression of democratic activity. The regime itself stands accused of violence, even murder. A legitimate question in the circumstances is whether the cure is worse than the disease. That is a question which the Minister could give consideration to if he were minded to consider the applicant’s circumstances on a humanitarian basis.
I find that the decision of the Tribunal is free from jurisdictional error. It is, therefore, a privative clause decision and the application must be dismissed.
Costs should follow the event in this case. The Federal Magistrates Court scale calls for a costs award in the amount of $5,000 and I will apply the scale amount.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 July 2008
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