SZMFA v Minister for Immigration
[2008] FMCA 1468
•31 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMFA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1468 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether failure to consider ‘real chance’ of persecution in the foreseeable future in the event of the Awami League assuming government – applicant must make out own case – whether s.91R of the Act misapplied. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 474 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Mok Gek Bouy v the Minister of Immigration, Local Government & Ethnic Affairs & Malcolm Paterson [1993] FCA 545 SZLWV v Minister for Immigration & Anor [2008] FMCA 1022 SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 Abebe v Commonwealth (1999) 197 CLR 510 VTAO v Minister for Immigration & Indigenous Affairs [2004] FCA 927 Das v Minister for Immigration & Multicultural Affairs [2004] FCA 489 VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32 Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; 215 ALR 733 |
| Applicant: | SZMFA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1086 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing date: | 1 September 2008 |
| Date of Last Submission: | 1 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr C. Jackson |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application filed on 30 April 2008, the amended application filed on 16 July 2008 and the further amended application filed on 1 September 2008, are dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5490.00 payable within six (6) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1086 of 2008
| SZMFA |
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) handed down on 8 April 2008 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.
Background
The applicant was born on 1 November 1975. He claims to be a national of Bangladesh, of Sunni ethnicity, and of Islamic faith.
The applicant arrived in Australia on 17 May 2007 on a Bangladeshi passport issued in his own name.
The applicant lodged an application for a protection visa on 14 June 2007 on the basis that he fears persecution in Bangladesh for reason of his political involvements.
On 23 July 2007 the delegate refused to grant the applicant’s protection visa on the basis that he was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 17 August 2007 the applicant applied to the Tribunal for review of the delegate’s decision.
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 29 August 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 27 September 2007 to give oral evidence and present arguments. The applicant attended the Tribunal hearing on that occasion.
On 2 November 2007 the Tribunal wrote to the applicant pursuant to s.424A of the Act. The Tribunal again wrote to the applicant pursuant to s.424A on 20 February 2008. The applicant provided responses to each letter.
I accept that the first respondent accurately summarises the applicant’s claims and the Tribunal’s Findings and Reasons, as follows:
The Applicant claimed to fear persecution in Bangladesh for reason of his political opinion. He claimed to be an active member of the Bangladesh National Party (BNP) and to fear harm from rival political groups and the current government. He claimed that he was attacked in 1997 and 2006 by members of rival groups, and to fear false charges under the Special Powers Act from the current caretaker government. See generally [Court Book] CB 122-124.
The Tribunal was not satisfied that the Applicant’s claimed fears were well founded, noting that they were contrary to independent country information given that the Applicant had on the Tribunal’s findings no more than a minor involvement in Bangladesh politics. See generally CB 125-127
The proceedings before this Court
The applicant filed the application in this Court on 30 April 2008 setting out two grounds of review of the Tribunal’s decision. The applicant filed an amended application on 16 July 2008 setting out two grounds of review. A further amended application was filed in Court on 1 September 2008 setting out two grounds of review.
Mr Jackson of counsel appeared for the applicant on 1 September 2008. Mr Reilly of counsel appeared for the first respondent.
Mr Jackson confirmed on that occasion that the applicant was not pressing the application nor amended application, but relied on the grounds set out in the further amended application (Court transcript, 1/09/2008, p 3).
Grounds of the further amended application
Ground 1 of the further amended application
Ground 1 of the further amended application states that:
The Tribunal, which took into account information which suggested a decrease in political violence as a result of the State of Emergency, failed to ask whether, given that it was foreseeable that the Awami League would be elected in the proposed elections, the Applicant could be persecuted for reason of his political beliefs in the foreseeable future, that error going to jurisdiction.
Particulars
The Applicant’s claims were based upon his membership of the BNP, the party in opposition to the Awami League. Elections were to be held “by October 2008”.
In applying the Convention definition of a refugee, the Tribunal is obliged to consider whether there is a real possibility of persecution both in the present, and the reasonably foreseeable future: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 279.
In Mok Gek Bouy v the Minister of Immigration, Local Government & Ethnic Affairs & Malcolm Paterson [1993] FCA 545 at [96], the Court described the test as:
whether there was a real chance of persecution necessarily required the delegate to look at the future in so far as it was reasonably foreseeable at the time when he was making his decision.
However, as pointed out in SZLWV v Minister for Immigration & Anor [2008] FMCA 1022 at [11], the assessment of what is “reasonably foreseeable” in the future involves a consideration of something that is “not far-fetched or fanciful.”
The Tribunal, in setting out the relevant law on the definition of a refugee, referred to the requirement to consider the reasonably foreseeable future, as follows:
Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist or when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future [emphasis added]: (CB 122).
I accept that the Tribunal correctly summarised the law in this regard. However, I also accept the submission by the applicant that merely stating the law does not establish that a Tribunal has correctly applied it. As observed by Allsop J in SZGHS v Minister for Immigration & Citizenship [2007] FCA 1572 at [3]:
The Tribunal may be taken to have directed itself in respect of these matters uncontroversially in its template introduction. That does not, however, immunise its reasons from scrutiny or from a conclusion that, notwithstanding assertions in its reasons, its approach demonstrates a failure to employ the correct approach.
The applicant submits that:
The November 2007 Australian High Commission report cited by the Tribunal observed that:
The transformation of the political landscape and restriction on ‘internal politics’ during the State of Emergency period has led to very limited political activities and a signficant reduction of politically motivated violence including retaliation against opponents. There has not been a single incidence of violence or clash between the two factions of Sylhet-BNP since January 2007 (CB 125 para 37).
It was obvious, on the material, both general and specifically from the applicant, that the political situation was highly fluid, and that it was highly likely that there would be a fresh government within a relatively short period of time.
That government would almost certainly be either the BNP or the Awami League. Given this likelihood, the Tribunal was required, if correctly applying the “reasonable foreseeable risk” test, to consider two scenarios.
First, the Awami League could win office. Given the applicant’s largely accepted account of past harm suffered at the hands of his Awami League political opponents, and given the likely increase in political violence upon the ending of the state of emergency (based on past experience, and the fact that the prohibition on political activity had reduced violence during the state of emergency), the Tribunal should have considered whether there was a real risk that a campaign of retribution would be entered into by the Awami League, and the applicant would be at risk of persecution.
Second, the BNP could win office. Again, given the likely increase in political conflict should this occur, the Tribunal should have considered the past conflict between the two factions within the BNP (and see the Australian High Commission report, at RD125), the applicant’s involvement in that conflict, and whether or not the applicant was at real risk of harm because of that conflict.
The Tribunal did not consider these questions.
The Tribunal’s failure to consider these matters was a failure to apply the correct test, and a constructive failure to exercise jurisdiction (SZLWV at [17]; SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 at [29]-[31]).
In assessing this submission, it is necessary to identify the grounds upon which the applicant relied in making his application for a protection visa, both before the delegate and the Tribunal.
I consider that a fair reading of the relevant part of the applicant’s Statement of Claims, which accompanied his application for a protection visa, indicates that the applicant’s alleged fear of persecution was based on stated concerns about what may happen to him if he returns to Bangladesh while the current caretaker government remains in power:
In 2006 our party [BNP] completed its 5 years term in the government and handed over the power to the caretaker government to run the next election. Awami League generated chaos against the caretaker government [emphasis added]. On 1 November 2006 differently formed caretaker government backed by army took over power. Emergency promulgated in the country.
The current government has arrested many BNP leaders and workers without any valid charge and detained. False cases filed against BNP leaders only to detain them. My opponent political activists filed false cases of receiving ransom, donation, and bribes against me. Apart from that during the time of Awami League government [1996-2001] their activists filed false criminal cases of violence against me. This case was also revived in March this year [2007] by the caretaker government [emphasis added]. I was under the police investigation. I went in hiding and lived in different places for a few months. In the mean time I was trying to obtain a visa for overseas to leave Bangladesh for safety for my life. I was able to organise a visa for Australia and leave the country. I came to know police has brought charges against me and visited my home two times to arrest me.
After my arrival in Australia I decided to apply for a Protection visa as my position in Bangladesh was not secure. My life was under threat. I had every chance of being persecuted on my return back.
It is apparent that the political situation in Bangladesh has changed in the meantime under the present government. Government is very arrogant with the opponent political activists. Their lives became under threat. In the name of national security government continues to deploy repressive laws to violate political rights, such law violates right to life, liberty and security of the person. They are discriminatory in their application, they violate all the safe guards against arrest and detention, the prohibition on torture or cruelty, degrading and inhuman punishment. The use and abuse of Special Powers Act (SPA) in the name of protecting security interests has resulted in a steady pattern of human rights violations. The SPA Claims and Evidence [CB 122-123] has been widely used to detain certain opposition activists. It is also disproportionately deployed against BNP activists. I would be one of them if I returned back to Bangladesh. I fear of my own safety on my return back to Bangladesh.
Under these circumstances I have every chance of being persecuted … I would be prosecuted/ punished for my political belief. My life will be under risk. I shall be punished in relation to false cases (CB 31-32).
In his Statement of Claims, the applicant thus made only two direct references to the Awami League (in emphasis in the above-quoted passage). The first reference only concerns events in 2006 preceding the formation of the caretaker government. Of itself, it contains no assertion regarding what may happen to the applicant should the Awami League regain power. The second reference, while referring to Awami League activists filing false criminal cases of violence against the applicant, also states that the case was revived in March 2007 by the caretaker government, and that it was in response to that action by the caretaker government that the applicant:
was under the police investigation. I went in hiding and lived in different places for a few months.
The applicant has not provided the Court with the transcript of the evidence taken at the Tribunal hearing. Without this assistance, I consider that a fair reading of the Tribunal’s summary of the applicant’s Claims and Evidence (at CB 122-125) indicates that at no time during the hearing did the applicant express any concerns of persecution if the Awami League were to return to power in the future.
Furthermore, following the Tribunal hearing, the Tribunal wrote to the applicant on two occasions (CB 69-70 and 96-97). The applicant replied to both s.424A letters (CB 71-72 and 98-99). In neither letter of response did he express any concerns of persecution if the Awami League were to return to power in the future.
I am thus satisfied that the applicant, at all relevant times, directed his alleged fear of persecution to the actions of the current caretaker government in Bangladesh. The applicant did not directly raise with the delegate or the Tribunal the question whether he might be persecuted should the Awami League at some future time get back into power. It appears that this contention has only been raised by the applicant subsequent to the Tribunal handing down its decision.
It is well-settled that a decision-maker is not required to make the applicant’s case for him: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70; SZBEL at [40]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] and [1]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73].
Indeed, an applicant will have to supply the relevant facts of his case in as much detail as is necessary to enable the Tribunal to establish the relevant facts. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As further observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Taking all the above matters into account, I consider that it is within this context of alleged risk of persecution by the current caretaker government that the Tribunal was required to consider the situation in the reasonably foreseeable future.
I consider that the Tribunal in its Findings and Reasons specifically considered the reasonably foreseeable future in relation to what may happen to the applicant if he were to return to Bangladesh whilst the current caretaker government remained in office:
In the circumstances and given the situation in the country described in the High Commission’s report at 37-38 above, [CB124-125], I do not accept that any harm has unjustly come to any of the applicant’s colleagues and therefore do not accept that there is a real chance that the applicant would himself be arrested or otherwise harmed for reason of his political opinion if he were to return to Bangladesh. In particular, I do not accept tha the police have been looking for him since he left the country or that he was forced into hiding prior to leaving.
I find that he could return and resume political activity subject to compliance with the present emergency rules. These would not prevent him meeting with colleagues and participating in the reform of his party (CB 126).
The Tribunal also considered in general terms the reasonably foreseeable future in relation to the elections expected in later 2008. It stated in this regard that:
Later this year it is expected that moves will be made to prepare for new elections and [the applicant] will be able to participate in that process without fear of harm amounting to persecution. I do not suggest that Bangladeshi politics will overnight become peaceful. However whatever violence there may be will not result in persecution of the applicant or anyone else involved in the political process for reason of his or her political opinion, above all people involved at the relatively minor level at which the applicant was involved (CB 126-127).
The Tribunal further considered the reasonably foreseeable future in relation to the outcome of possible past or future claims against the applicant:
This finding goes also for any false cases which may have been lodged against the applicant or which may be lodged in the future. This device is popular in Bangladeshi politics and such cases are, eventually, routinely dismissed by the courts. Meanwhile it is very rare for them to be pursued. I do not accept that the applicant, given his particular situation, has anything to fear on this score (CB 127).
I thus detect no jurisdictional error on this basis. Accordingly, Ground 1 of the further amended application is rejected.
Ground 2 of the further amended application
Ground 2 of the further amended application states that:
The Tribunal erred in law, and erred in its application of section 91R of the Migration Act in failing to consider whether the mere fact that State sanctioned prosecutions were and may be brought against the Applicant might amount to persecution even if such prosecutions were “routinely dismissed by the Courts” and even if it were “rare for them to be pursued”.
In support of this ground, the applicant submits that:
The Tribunal accepted that false charges had been laid against the applicant, and could be laid against him in the future. However, the Tribunal did not ask itself whether the very fact of being charged, detained, and possibly prosecuted on false charges might in itself amount to persecution, amongst other things, because it fitted one of the non-exhaustive, but sufficient, criteria in the statutory definition, being “a threat to [the applicant’s] liberty.
In SGKB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 44 at [21], the Full Court found that the Tribunal in that case had erred by (amongst other things) failing to consider whether or not “… the risk of losing an opportunity of government employment was itself sufficient to constitute persecution”.
In failing to consider this question, the Tribunal has misunderstood the nature of the task that it has to perform in determining whether the Applicant is at risk of persecution, and this error goes to jurisdiction: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 at [82].
So far as is relevant, s.91R of the Act provides:
Persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
Whether particular conduct amounts to persecution under s.91R is a matter of fact and degree for the Tribunal to determine in its fact finding role: VTAO v Minister for Immigration & Indigenous Affairs [2004] FCA 927 at [67]; Das v Minister for Immigration & Multicultural Affairs [2004] FCA 489; (2004) 208 ALR 229 at [23]-[24]; VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32 at [24]; and Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; 215 ALR 733 at [51]-[52].
I consider that a fair reading of the Tribunal decision demonstrates that it correctly set out the relevant law in regard to s.91R, including that “serious harm” can include a threat to life or liberty (CB 121), and also considered the possibly of the applicant being charged or prosecuted on false charges, concluding that:
This finding goes also for any false cases which may have been lodged against the applicant or which may be lodged in the future. This device is popular in Bangladeshi politics and such cases are, eventually, routinely dismissed by the courts. Meanwhile it is very rare for them to be pursued. I do not accept that the applicant, given his particular situation, has anything to fear on this score [emphasis added] (CB 127).
I consider that this finding was open to the Tribunal on the evidence and material before it and that it performed the task required of it in accordance with law.
Furthermore, as stated earlier in this judgment, the Tribunal is not required to make the applicant’s case for him. It was for the applicant to put whatever evidence or argument he wished to the Tribunal in regard to claims amounting to risk of persecution for its consideration. In this case, the Tribunal was not able to reach the requisite state of satisfaction on the material provided by the applicant.
Having thus properly considered the evidence and material before it, the Tribunal in this case was thus under no obligation to conduct any further investigation before concluding that the applicant did not have a well-founded fear for a Convention reason.
For the reasons stated above, I detect no jurisdictional error on the part of the Tribunal. Accordingly, Ground 2 of the further amended application is 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, amended application, and further amended application before this Court are dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 31 October 2008
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