SZNBG v Minister for Immigration
[2009] FMCA 231
•25 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNBG v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 231 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal’s findings of facts not reviewable in judicial review proceedings – no breach of s.424A proved. |
| Migration Act 1958, ss.424AA, 424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZNBG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3265 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 17 March 2009 |
| Date of Last Submission: | 17 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 25 March 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr P. Reynolds |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3265 of 2008
| SZNBG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh where he claims he was an active and prominent member of Chhatra Dal, the student wing of the Bangladesh Nationalist Party (“BNP”). He alleges that, while in Bangladesh, he was a candidate in the 2001 Chhatra Dal elections and this subsequently made him a target of the Awami League and of a faction within his own party.
The applicant claims to fear persecution in Bangladesh because of his political opinions.
After his arrival in Australia on 2 April 2008, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 24 July 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 9 of the Tribunal’s decision (Court Book (“CB”) pages 111 – 116). Relevant factual allegations are set out below.
Protection visa application
The applicant made the following claims in his protection visa application:
a)in 1994 he became sports secretary of the student wing of the Bangladesh Nationalist Party (Laksam Thana Chhatra Dal) and, while at college, was elected as general secretary and sports secretary of the Chhatra Dal in the Comilla district. He had a very difficult time during this period because the Awami League was in power;
b)during the 2001 parliamentary elections he worked hard for the BNP candidates and, as a result, got close to the higher level political leaders;
c)at this time there was a widespread rumour that the applicant would be selected as secretary of the Chhatra Dal in the Comilla district, a highly regarded political position. From this point he became a target both for the opposition and for some BNP party members;
d)when the BNP leader asked him not to accept the offer of the position the applicant refused. He was subsequently attacked twice and brutally beaten by members of his own party and was told that the party would not protect him from the opposition if he continued; and
e)he lived in Comilla from 1998 to December 2004 and then moved to Saipan where he married a woman who, it may be inferred, had residency rights there. He left Saipan after their separation as he was no longer authorised to remain.
Tribunal hearing
The applicant attended a hearing before the Tribunal and made the following additional claims:
a)he held various positions within the Chhatra Dal between 1993 and 1998 and remained a member of the party until the time of his departure for Saipan in 2004;
b)his party split into two factions during the 2001 Chhatra Dal elections: the Wasim group, which was the stronger of the two factions, and the Jasim group, to which the applicant belonged. Members from the Wasim faction threatened those from the Jasim faction;
c)the applicant was a candidate for the position of secretary in Comilla district in the 2001 elections. He was unsuccessful and held no elected position after this;
d)between 2001 and 2004 he was not an ordinary member of the party as he was a candidate;
e)in 2002 his house was damaged by members of the Awami League. He was also attacked during a football tournament by people from the Wasim faction. All of these threats were designed to force him out of politics;
f)there was one incident after 2002 which occurred when Awami League supporters in the applicant’s village thought that he and his cousin were strike breaking. The applicant escaped but his cousin was beaten;
g)he lived with his parents full-time from 2003 until 2004 when he went to Saipan. During this period he spent almost all of his time with his parents;
h)he re-entered Bangladesh in 2006 and 2008 because of his father’s illness but was in hiding on both occasions;
i)although the Wasim faction still exists, most of its members have fled. Even so, the applicant was threatened by them when he returned to Bangladesh in 2006;
j)he is no longer a paid-up member of the party and does not intend to return to political activities;
k)if he returns to Bangladesh his opponents will name him to the army-backed government and he will suffer harassment. Further, there is much networking within the parties and people who move are still chased and killed; and
l)he did not seek asylum in Saipan because he was married and was therefore living there legally.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
The Tribunal found that the applicant had been truthful in his claims about his political role within the Chhatra Dal in Comilla and therefore accepted that:
a)he joined the BNP’s Chhatra Dal in around 1993 and was an office holder in various capacities until 2001;
b)he was threatened by political opponents until 2002 at a time when he was a Chhatra Dal office holder or political candidate for that party; and that
c)the sources of those threats were members of another faction of his party and also members or supporters of the Awami League.
Further, given the violent nature of Bangladeshi politics, the Tribunal found it plausible that the applicant would have some fear of being harmed in Bangladesh. However, it concluded that his fear was not well-founded because:
a)he lived with his parents at the family home in Comilla during his final two years in Bangladesh (being 2003/2004) and, throughout this period, did not suffer any harm as a result of his political opinions. The Tribunal considered this significant because the applicant would have been easy to locate had anyone in fact wished to harm him;
b)since then the applicant had returned to Bangladesh twice and was present in Comilla for a total of some four months between 2006 and 2008 and again did not suffer any harm. The Tribunal inferred from this that harming the applicant was a low priority for his previous political opponents, if indeed it was a priority at all;
c)the applicant gave evidence that the threats made against him in the past were designed to force him out of politics. He also gave evidence that he has not been an office holder in the Chhatra Dal or the BNP since 2001, has not been a political candidate for some six years, is no longer a member of either party and, significantly, has no intention of participating in any political activities if he returns to Bangladesh. On this basis, the Tribunal considered it reasonable to assume that the applicant’s past political opponents would have no political motive to threaten or seriously harm him in the future;
d)given the applicant’s evidence that all his past political activities occurred in Comilla and that all his past problems were with local opponents there, the Tribunal was satisfied that any problems he might face from the people he feared would be confined to the town of Comilla. The Tribunal was therefore satisfied that if the applicant were to live elsewhere the chances of him being persecuted by his political opponents, or by the caretaker government, would be remote; and
e)as a young, mobile and well-educated person with a demonstrated ability to adapt to new environments, the Tribunal concluded that it would be entirely reasonable for the applicant to settle in Bangladesh somewhere other than Comilla.
Proceedings in this Court
The grounds pleaded in the amended application can be summarised as follows:
a)the Tribunal made a jurisdictional error when it rejected the applicant’s claims on the basis that he did not suffer harm;
b)the Tribunal made a jurisdictional error when it concluded, without reasonable information and evidence, that the applicant could relocate in Bangladesh; and
c)the Tribunal failed to comply with s.424A of the Migration Act 1958 (“Act”).
Rejection of claim to have been harmed
The following particulars were supplied in respect of the first allegation:
The Tribunal is therefore satisfied that, regardless of his concern that he might be harmed, he was not harmed during his final two years in Bangladesh (CB 119 paragraph 71).
He has re-entered Bangladesh twice since then, and has spent at least some of his time at his family home in Comilla, without being harmed (CB 119 paragraph 72).
The applicant had threat in 2006 (CB 119 paragraph 72).
The Tribunal infers from the fact that he was present in Comilla for a total of some four months between 2006 and 2008, without being harmed, that harming him was a low priority (CB 119 paragraph 72).
‘Strong feud’ which the applicant considers that he would be still in danger there (CB 119 paragraph 74).
In this ground the applicant challenges the Tribunal’s reasoning and asserts that, notwithstanding the fact that for several years prior to his arrival in Australia the applicant had not suffered any harm or disadvantage suggesting persecution, the Tribunal ought, nevertheless, have concluded that his alleged fear of persecution should he return to Bangladesh was well-founded. In support of his allegation to have a well-founded fear of persecution, the applicant relied on para.74 of the Tribunal’s decision where the Tribunal refers to his allegation that in Comilla there is a conflict between him and his political opponents which had turned into a “strong feud” and that it was this which led him to fear that he was still in danger there.
The Tribunal’s conclusion was that, notwithstanding that allegation, the fact that the applicant had not suffered harm for such a lengthy period prior to his arrival in Australia meant that he did not have a well-founded fear of persecution for a Convention reason. Such a conclusion was based on the orthodox proposition that what had happened in the past was likely to be the most reliable guide as to what would happen in the future: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575.
Consequently, there was no error in the process of reasoning adopted by the Tribunal. Moreover, the factual conclusion that it reached was one which cannot be disturbed by this Court whose role is to declare and enforce the law which governs the Tribunal’s operations, not to undertake a further review of the merits of the visa application.
Relocation
The second allegation in the amended application was pleaded in the following terms:
The Tribunal made a jurisdictional error that the Tribunal did not show any reasonable information and evidences on the basis of which the Tribunal can conclude that relocation is possible for the applicant and the Tribunal also did not consider the applicant’s concern when he informed the Tribunal that people moved in Bangladesh and being chased and killed (AB 115 paragraph 60), the Tribunal did not consider it.
The first element of this allegation is that the Tribunal’s conclusion regarding the potential for the applicant to relocate within Bangladesh was unsupported by evidence. However, a review of the Tribunal’s decision demonstrates that this is not so. At para.76 of its decision record the Tribunal expresses its view on relocation in the following terms:
The Tribunal is of the view, and finds, that it would be entirely reasonable for [the applicant] to settle in Bangladesh somewhere other than Comilla. He is young, mobile, well-educated and has illustrated his ability to adapt to new environments by settling first in Saipan, and secondly in Australia.
Consequently, to the extent that the applicant alleges that the Tribunal’s finding on the reasonableness of avoiding the claim of persecution by relocating within Bangladesh was unsupported by evidence, that allegation is not made out.
Alternatively, it may be that the applicant is alleging that the Tribunal’s conclusion, rather than being based on no evidence at all, was simply inadequately supported by the evidence in that there was insufficient evidence to justify the conclusion in question. If this is the allegation, it too must fail. If, as here, there is evidence on which the Tribunal can base its finding on an issue, that finding may not be set aside even if the Court may have a different view of the evidence. As long as the Tribunal operated within the law, as it did here, the fact that the Tribunal may have made an incorrect finding of fact, were that to have occurred, is not a matter reviewable by the Court.
The second element of the second allegation is that when considering the relocation issue the Tribunal ignored certain relevant evidence which the applicant had placed before it. This allegation also cannot be made out on the facts. At para.60 of its decision the Tribunal records the applicant’s response to its proposition that it seemed reasonable for him to relocate within Bangladesh. The applicant is recorded as replying that:
… people had moved in Bangladesh and being chased and killed. Bangladesh was not a big country and there was much networking in parties.
This evidence was expressly referred to by the Tribunal when considering the relocation issue in that part of its decision under the heading “Findings & Reasons”. At para.75 the Tribunal expressly stated that it had considered the applicant’s evidence that “there is much networking in Bangladesh” but went on to hold that because his evidence was that all his past political activity was in Comilla and that all his past problems were with local political opponents in Comilla, it was satisfied that any problems he might face from the people he fears would be confined to Comilla and that were he to live elsewhere his chances of being persecuted by members of his or any other political party or by the then caretaker government would be remote.
For these reasons, the second ground alleged in the amended application is not made out.
Breach of s.424A
The third ground alleged in the amended application was pleaded as follows:
The Tribunal made jurisdictional error that the Tribunal did not give adverse information to the applicant for comment which are the reasons or part of the reason to reject the applicant’s claims, which was given to Department of Immigration and Citizenship. The Tribunal told him regarding adverse information (AB 115 paragraph 61, 62) orally but the applicant submits there are some information he needs to address with documents and papers to give proper reply to the Tribunal’s inquiry but the applicant did not get that opportunity.
The first element of the third pleaded ground alleges that, in reaching its decision, the Tribunal relied on information which the applicant had supplied to the Minister’s department and which it had an obligation to put to him in accordance with s.424A of the Act. However, s.424A(3)(ba) provides that s.424A does not apply to information
that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department …
It can be inferred from the Court Book that the applicant did not attend a departmental interview or otherwise provide information orally to the Minister’s department. Consequently, such information as the applicant may have given the department was not required by s.424A to be re-served on him.
The second element of the third ground is that, to the extent that the Tribunal did satisfy its obligations under s.424A by giving him information orally pursuant to s.424AA, it failed to meet all the requirements of that latter section.
Section 424AA provides:
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so – the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Consequently, were the applicant to have sought additional time to respond to the information identified by the Tribunal in its oral notification, as the applicant impliedly alleges that he did, the Tribunal would have been obliged to have given any such request proper consideration and to have exercised judicially its discretion whether or not to adjourn the review hearing.
But the applicant did not ask for further time as he alleges. The Tribunal’s decision record, the accuracy of which the applicant has not challenged, discloses in paras.61 and 62 that on the two occasions the Tribunal gave the applicant notification pursuant to s.424AA and was given the option of responding orally or in writing, he chose on both occasions to respond immediately and orally.
Alternatively, it may be that the applicant is alleging that the Tribunal did not observe the requirements of s.424AA(b)(iii). The Tribunal’s brief summary of the exchanges between it and the applicant on the information it notified to him does not set out, in terms, that the Tribunal told the applicant that he might seek additional time to comment on or respond to that information, as required by s.424AA(b)(iii). Nevertheless, the Tribunal prefaces its summary of each of the exchanges with the following words:
Following the procedures required by s.424AA of the Act … (paras.61, 62)
The Court should not be concerned with looseness in the Tribunal’s language nor with unhappy phrasing of its reasons. The Tribunal’s reasons for decision are not to be construed minutely or finely with an eye keenly attuned to the perception of error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Such considerations are relevant here. No transcript of the Tribunal hearing which would prove precisely what the Tribunal said has been put before the Court. Absent any evidence to demonstrate that the Tribunal failed to observe the procedural stipulations of s.424AA, in circumstances where the Tribunal expressly referred to having followed those procedures, I am not willing to conclude that a breach of the requirements of s.424AA has been demonstrated.
For these reasons, the third ground pleaded in the amended application is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been made out.
Consequently, the application will be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 25 March 2009
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