SZNBG v Minister for Immigration and Citizenship

[2009] FCA 544

FEDERAL COURT OF AUSTRALIA

SZNBG v Minister for Immigration and Citizenship [2009] FCA 544

SZNBG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 280 of 2009

COWDROY J
29 MAY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 280 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNBG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	29 MAY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the costs of the First Respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
           The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 280 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNBG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE:	29 MAY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from the decision of Federal Magistrate Cameron delivered on 25 March 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 14 November 2008. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection (Class XA) visa to the appellant.

   BACKGROUND

2. The appellant is a citizen of Bangladesh who arrived in Australia on 2 April 2008. On 30 April 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 24 July 2008. On 18 August 2008 the appellant applied to the Tribunal for a review of that decision.

3. Before the Tribunal, the appellant claimed that in 1994 he had become Sport Secretary of the student wing of the Bangladesh Nationalist Party (‘BNP’). He claimed that after leaving college he worked for BNP candidates and due to his work and his increasing profile he became a target of both the Awami League and some rival BNP members.

4. The appellant lived in Comilla, Bangladesh from 1998 to December 2004. During the 2001 parliamentary elections he worked for BNP candidates and became close to high level political leaders. He claimed that he was asked not to accept a leadership position but he refused. Thereafter he was attacked twice and brutally beaten by both BNP rivals and Awami League members. He stated that people came to his house and threatened that he would be killed. Following these events he decided to leave Bangladesh. In December 2004 he moved to Saipan in the Northern Mariana Islands where he married. The appellant remained in Saipan until he became separated from his wife and he had to leave under the conditions of his visa. He then departed for Australia.

   THE TRIBUNAL’S DECISION

5. The Tribunal found that the appellant had been truthful in his account of his political roles, and accepted that he had joined the BNP in 1993 and was an office holder until 2001. The Tribunal was satisfied that the appellant was threatened by political opponents both outside and within the BNP until 2002. The Tribunal found that, given the violent nature of politics in Bangladesh, it was plausible that he had some fear of being harmed in Bangladesh.

6. However, the Tribunal concluded that this fear was not well-founded for three reasons. Firstly, the Tribunal noted that the appellant lived with his parents in the family home during 2003 and 2004 and did not suffer any harm as a result of his political opinions, despite the fact that he would have been easy to locate.

7. Secondly, he had returned to Bangladesh twice in 2006 and 2008 and did not suffer any harm. The Tribunal inferred that harming the appellant was a low priority, if it was a priority at all, for his political opponents.

8. Thirdly, the appellant had given evidence that the threats against him were designed to force him out of politics and there was evidence that he had not been involved in politics for at least 6 years; that he was not a member of any party; and that he had no intention of participating in any political activities if he returned to Bangladesh. On this basis, the Tribunal considered it reasonable to assume that the appellant’s past political opponents would have no political motive to threaten or harm him in the future.

9. The Tribunal was satisfied that if the appellant where to relocate elsewhere within Bangladesh, the chances of him being persecuted by his political opponents would be remote. The Tribunal found that as a young, mobile and well-educated person with a demonstrated ability to adapt to new environments, it would be entirely reasonable for the appellant to settle somewhere else in Bangladesh.

10. The Tribunal concluded that there was no real chance of the appellant suffering persecution for a Convention reason in the reasonably foreseeable future. The Tribunal therefore concluded that the appellant did not have a well-founded fear of persecution in Bangladesh. It follows that the appellant had not satisfied the prescribed criteria for the grant of a Protection (Class XA) visa.

    APPLICATION IN THE FEDERAL MAGISTRATES COURT

11. By application filed in the Federal Magistrates Court of Australia on 10 December 2008, and by amended application filed on 20 February 2009, the appellant sought judicial review of the Tribunal’s decision.

12. As summarised by Federal Magistrate Cameron, the appellant claimed in the amended application that:

    1.The Tribunal made a jurisdictional error when it rejected the applicant’s claims on the basis that he did not suffer harm;

    2.The Tribunal made a jurisdictional error when it concluded, without reasonable information and evidence, that the applicant could relocate in Bangladesh; and

    3.The Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) [‘the Act’].

13. As to the first ground, Cameron FM found that the appellant appeared to be challenging the Tribunal’s reasoning and asserting that, notwithstanding the fact that for several years prior to his arrival in Australia he had not suffered any harm or disadvantage suggesting persecution, the Tribunal ought, nevertheless, to have concluded that his alleged fear of persecution should he return to Bangladesh was well-founded.

14. His Honour found that the Tribunal’s conclusions in this respect were 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, citing Minister for Immigration and Ethnic Affairs v Guo and Another; Minister for Immigration and Ethnic Affairs v Pan and Another (1997) 191 CLR 559 at 575. Consequently, there was no error in the process of reasoning adopted by the Tribunal. Moreover, his Honour found, the Tribunal’s factual conclusion was one which could not be disturbed by the 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.

15. As to the second ground, Cameron FM found that a review of the Tribunal’s decision demonstrated that the conclusion by the Tribunal in respect of the finding on relocation was supported by evidence. His Honour referred to [76] of the Tribunal’s decision in which it stated:

    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.

16. In respect of the appellant’s claim that the Tribunal ignored certain evidence, the Federal Magistrate found that the Tribunal at [75] of its decision expressly stated that it had considered his evidence that ‘there is much networking in Bangladesh’. The Tribunal concluded that because his evidence established 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. If the appellant relocated elsewhere in Bangladesh his chances of being persecuted by members of his or any other political party or by the then caretaker government would be remote.

17. His Honour also found that a claim that the Tribunal’s findings were inadequately supported by evidence (rather than not supported at all) could also not be made out on the facts.

18. As to the third ground, namely the alleged breach of s 424A of the Act, Cameron FM noted that the obligation in s 424A(1) did not apply to information which had been supplied by the appellant to the Minister’s Department, because of its exclusion by s 424A(3)(ba). Further, his Honour found that when the Tribunal gave the appellant notification pursuant to s 424AA of the Act it had offered him an opportunity to respond either orally or in writing and that he had chosen on both occasions to respond immediately and orally. His Honour found that the appellant did not ask for additional time to comment on or respond to the information. His Honour observed that had such request been made, the Tribunal would have been obliged to give consideration to it. However, no such request was made.

19. Cameron FM also considered that though the Tribunal had not expressly mentioned that it had told the appellant that he could ask for more time to answer questions, the Court should not be concerned with looseness in the Tribunal’s language nor with unhappy phrasing of its reasons citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272. His Honour found that, in the absence of the transcript of the hearing, and in circumstances where the Tribunal expressly referred to having followed the procedures of s 424AA, his Honour was of the opinion that it could not be concluded that the Tribunal breached those requirements.

    APPEAL TO THIS COURT

20. On 6 April 2009 the appellant filed in this Court a Notice of Appeal from the decision of Cameron FM. The appellant raises the following three grounds of appeal which are substantially the same as those before the Tribunal:

    1.The Federal Magistrate erred by not holding that the Tribunal made a wrong decision on the basis of incorrect findings that the appellant did not suffer harm.

    2.The Federal Magistrate erred by not holding that the Tribunal failed to refer to any evidence in rejecting the appellant’s claim and finding that the appellant could relocate to another part of the country.

    3.The Federal Magistrate erred by not holding that the Tribunal failed to comply with its obligations pursuant to s 424A as it failed to allow the appellant additional time to comment on or respond to the information. The appellant was not given an opportunity to provide documentary evidence in response to the questions of the Tribunal.

    APPELLANT’S SUBMISSIONS

21. The appellant provided both written and oral submissions to the Court. In his written submissions the appellant claimed that because he was a leader of the BNP he fears harm from members of the Awami League now that the Awami League is in power. The appellant refers to the finding of the Tribunal which, after acknowledging the appellant’s claim that he had been involved in politics, found that his fear of harm was not well founded because he did not claim to have been harmed in the final two years that he lived in Bangladesh. The appellant submits that such finding is wrong. The appellant also submits that the Tribunal erred in concluding from the finding that the appellant did not suffer harm in Comilla for a total of four months between 2006 and 2008 that he was therefore a low priority for the Awami League. The appellant submitted that there is nothing in the law that suggests that the Tribunal can find the degree of harm.

22. As to the claim in relation to s 424A of the Act, the appellant submits that he was not provided with ‘enough time to give proper reply’ to the letter issued under s 424A. The appellant says he would have sought to ‘submit some papers, documences [sic], evidences’ to answer the finding of the Tribunal that he did not consider himself to be at risk of serious harm in Bangladesh because he had not sought asylum in the United States of America. The appellant submits that he did not ‘get much time to decide about those important issues’.

23. The appellant reiterates that now that the Awami League is in power, he will be persecuted and threatened so that his life is now not safe in Bangladesh.

24. The appellant, in his oral submissions before the Court, claimed that he had been tortured because of his politics and that the Tribunal had not believed him. Subsequently however, in his submissions in reply, the appellant agreed with the submissions of the Minister that in fact the Tribunal had believed his testimony concerning the harm he had suffered in the past. However, the appellant challenged the finding of the Tribunal that a finding that there was a low risk of harm resulted in the conclusion that he would not suffer harm in the future. For this reason the appellant asserted that the Tribunal failed to properly consider his claims.

25. The appellant also orally submitted that he did not have time to provide documents and evidence to the Tribunal, as stated in his written submissions. When asked what the documents he wished to provide were, he said his lawyer would be able to provide a document which confirmed he would not have been able to apply for a protection visa in Saipan after he separated from his wife. The reasons for his separation would also be contained in the documents. The appellant acknowledged that the documents were not currently in existence.

26. The appellant also claimed that he was asked so many questions during the hearing before the Tribunal that he was overwhelmed and that he didn’t realise that he should ask ‘specific questions’. He claimed that the government now in power in Bangladesh was the party he acted in opposition to and that the police could not protect BNP supporters like himself because they were answerable to the ruling party. He claimed that he had a fear of harm and threats to his own life in Bangladesh and that relocation was impossible for him because he was fearful of his own life. The appellant claimed that killing of political opponents continues in Bangladesh and that the Tribunal should have been aware of this fact through the media.

27. The appellant claimed the Federal Magistrate erred because he should have been aware of these matters.

    FINDINGS

    First Ground of Appeal

28. In the first ground of appeal the appellant claims that Cameron FM erred by ‘not holding that the Tribunal made a wrong decision based on incorrect findings that the appellant did not suffer harm’. The allegations of error by the Federal Magistrate contained in the Notice of Appeal relate back to the conduct of the Tribunal. Such allegations appear to seek a merits review of the Tribunal’s decision. A merits review cannot be conducted by this Court: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.

29. The Federal Magistrate observed that for several years prior to the appellant’s arrival in Australia he had not suffered harm nor been disadvantaged in such a manner as to suggest persecution in Bangladesh. His Honour observed the Tribunal’s finding that although the appellant may have ‘some fear of being harmed in Bangladesh’, it concluded that the fear was not well-founded. The appellant had suffered no harm whilst residing with his parents in Comilla between 2003 and 2004. This was a significant fact because the appellant would have been easy to locate had anyone wished to do him harm. Further, the appellant had returned to Bangladesh twice and was present in Comilla for approximately four months between 2006 and 2008 and again did not suffer harm. The threats of which he had given evidence occurred in an attempt to force him out of politics but following such events he had left politics and had not been an office holder since 2001; had not been a political candidate for six years; was no longer a member of either party; and, significantly, had no intention of participating in any political activities if he returned to Bangladesh. The Tribunal considered that it was entitled to assume that the appellant’s past political opponents would have no political motive to threaten or seriously harm him in the future.

30. His Honour took into consideration the decision in Minister for Immigration and Ethnic Affairs v Guo at 575 in which the Court confirmed that the most reliable guide as to the future conduct could be determined by the past. His Honour found no error in the Tribunal’s conclusion. It is apparent from the above that the Tribunal believed the appellant but did not consider that there was any real prospect of the appellant suffering persecution in the future finding that ‘the chance is remote that he might face treatment amounting to persecution if he returned to Bangladesh now’. The Tribunal did not hold that the risk was low, as submitted by the appellant. Rather that the risk was ‘remote’. The Tribunal was entitled to reach such conclusion, and no error is demonstrated by the Federal Magistrate in reaching such conclusion.

    Second Ground of Appeal

31. The second ground of appeal claims that the Federal Magistrate erred by not holding that the Tribunal failed to refer to any evidence in its finding that the appellant could relocate to another part of the country.

32. Cameron FM found that the Tribunal’s conclusion concerning relocation was supported by the evidence. In particular he referred to the ability demonstrated by the appellant to adapt to new environments by having settled firstly in Saipan and secondly in Australia. His Honour also noted that the Tribunal had specifically found that it had considered the evidence put before it that there was ‘much networking in Bangladesh’ and therefore it would quickly become known that the appellant had returned to Bangladesh. However, the Federal Magistrate observed that the Tribunal went on to hold that because the evidence related to the appellant’s past political activity in Comilla and that all the problems he relied upon to establish persecution related to that location only, it was satisfied that he could live elsewhere to avoid any risk. The Federal Magistrate found that there was no error in reaching such conclusion. Similarly, this Court can find no error with such conclusion.

    Third Ground of Appeal

33. The third ground of appeal claims that the Federal Magistrate erred by not holding that the Tribunal failed to comply with its obligations pursuant to s 424A of the Act because it failed to allow the appellant additional time to comment on or respond to information. The appellant also asserts that he wished to place documentary evidence to the Tribunal in response to questions asked by it.

34. The complaint of the appellant refers to the Tribunal record where it states at [61] that he was asked why he had re-entered Bangladesh willingly if he feared persecution there and at [62] why he didn’t apply for a protection visa while in Saipan.

35. The appellant, neither before Cameron FM nor before this Court applied for an adjournment of the proceedings in order that he could provide the documentation. As mentioned earlier, upon questioning the appellant, it became apparent that no documents existed at present.

36. This ground of appeal is, in any event, misconceived for two reasons. The first is that the documents and questions in [62] of the Tribunal decision went to the issue of why the appellant did not apply for a protection visa in Saipan. Such issue, while relevant to the initial refusal of a Protection (Class XA) visa by the Minister’s delegate, was not a reason cited by the Tribunal for their decision to uphold that decision of the Minister’s delegate. Therefore, whether or not the appellant had documentary evidence to prove that he had a good reason for not applying for a protection visa in Saipan is irrelevant. The Tribunal did not cite the appellant’s actions in not applying for a visa in Saipan as a reason to refuse a visa, so even if such documents did exist nothing would turn on it. Both s 424AA and s 424A of the Act state that the Tribunal must give to the applicant particulars of information which it considers ‘would be the reason, or part of the reason, for affirming the decision that is under review’. The information regarding the appellant’s failure to apply for a protection visa in Saipan was not such information.

1. The second issue raised by the third ground of appeal relates to [61] of the Tribunal’s reasons. Cameron FM found that when the Tribunal gave the appellant notification under s 424AA of the Act it gave him an opportunity to respond either orally or in writing and that the appellant had chosen to respond immediately and orally. Whilst the Tribunal did not explicitly state on the record that the appellant could seek additional time to comment or respond to information, his Honour considered that the principle should apply that the Tribunal’s reasons should not be the subject of detailed analysis. In support of such proposition his Honour referred to the decision in Wu Shan Liang at 272. No transcript was provided for the Federal Magistrate and since the Tribunal expressly referred to having followed the procedures in s 424AA, his Honour was not prepared to find that there was any breach of s 424AA of the Act. If s 424AA is complied with, s 424A need not be complied with pursuant to s 424A(2A).

2. Further, even if there was a breach of s 424AA, jurisdictional error does not result. In accordance with the principle in SZMCD v Minister for Immigration and Citizenship [2009] FCFCA 46 at [55], the only result of a failure to properly follow s 424AA is that the procedures in s 424A(1) must be satisfied. As found by Cameron FM, the information in question (the appellant’s return to Bangladesh on more than one occasion) was information that was excluded from s 424A(1) by s 424A(3)(ba) and therefore was never required to be put to the appellant. Accordingly, the third ground of appeal fails.

3. For these reasons the Court finds that the appeal is without merit and must be dismissed.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:        29 May 2009

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	Ms McWilliam
Solicitor for the Respondents:	Clayton Utz

Date of Hearing:	25 May 2009
Date of Judgment:	29 May 2009