SZQSX v Minister for Immigration and Citizenship

[2012] FCA 616

FEDERAL COURT OF AUSTRALIA

SZQSX v Minister for Immigration and Citizenship [2012] FCA 616

Citation:		SZQSX v Minister for Immigration and Citizenship [2012] FCA 616
Appeal from:		SZQSX & Ors v Minister for Immigration and Citizenship & Anor [2012] FMCA 210
Parties:		SZQSX, SZQSY and SZQSZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 442 of 2012
Judge:		COWDROY J
Date of judgment:		15 June 2012
Legislation:		Convention Relating to the Status of Refugees 1951 Migration Act1958 (Cth) ss 91R, 424A
Cases cited:		Minister for Immigration and Multicultural Affairs v Al-Shamry (2001) 110 FCR 27 Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 166 ALR 641 Opitz v Repatriation Commission (1991) 23 ALD 40 Ramirez v Minister for Immigration and Multicultural Affairs (2000) 176 ALR 514 SZQSX v Minister for Immigration and Citizenship [2012] FMCA 210
Date of hearing:	17 May 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	28
Solicitor for the First Appellant:	The First Appellant appeared in person
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 442 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQSX
First Appellant

SZQSY
Second Appellant

SZQSZ
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	15 JUNE 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

Note:    Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 442 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQSX
First Appellant

SZQSY
Second Appellant

SZQSZ
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE:	15 JUNE 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the decision of Federal Magistrate Raphael delivered on 29 February 2012: see SZQSX v Minister for Immigration and Citizenship [2012] FMCA 210. By such decision, his Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 15 September 2011 which affirmed a decision of a delegate of the first respondent to not grant a Protection (Class XA) visa to the appellants.

   BACKGROUND

2. The appellants are a family unit consisting of a husband, wife and child. They are citizens of Bangladesh and arrived in Australia from Bangladesh on 30 April 2010. On 10 June 2010 the first appellant lodged an application for a protection visa with the second and third appellants included as his family members. A delegate of the first respondent refused the application for a protection visa on 26 November 2010. On 20 December 2010 the appellants applied to the Tribunal for a review of that decision.

3. In 2004 the appellant commenced a business supplying goods to hotels. He conducted this business until 2009, when he closed the business. The appellant claimed to also be a member of the Bangladesh National Party (‘BNP’), a political party in Bangladesh. Before the Tribunal the first appellant was extensively questioned about his claimed involvement with the BNP. He stated that he had been a general member from 2004 before being appointed as social welfare secretary, and said that he occupied the position of social welfare secretary of the committee of Ward 8 in Dhaka.

4. The appellant claimed that while in Bangladesh he was the subject of threats and attempts to extort money from him, which commenced in approximately February 2008. The appellant claimed that the reason for the extortion was due to his political opinion and that the threats were made by persons associated with the Awami League, the current governing political party in Bangladesh. The threats included shots fired at his home.

5. As a result of the shooting, the first appellant claimed that he and his wife then moved to live with his in-laws for several months and that he then relocated back to Dhaka for the election period but continually moved around from place to place. The appellant claimed that he was threatened again in September 2009 which led him to seek refuge in Australia. The Tribunal was also provided with evidence from the second appellant.

6. Despite some inconsistencies in the dates provided, the Tribunal accepted the first appellant’s claim that he was threatened by persons associated with the Awami League. The Tribunal however came to the view that the extortion resulted from the fact that the first appellant was a successful businessman and not because of his role or membership in the BNP. The Tribunal accepted that shots were fired as claimed but found that such attack was intended to scare the appellant rather than to cause him actual harm. The Tribunal concluded that the first appellant’s political opinion and role were not the essential and significant reason for the threats.

7. The Tribunal did not accept that the first appellant’s membership of a particular social group of ‘popular and successful businessmen with financial means and interests’ or any other particular social group constituted the essential and significant reason for the harm suffered. The Tribunal found the attacks to be attempts to extort money and were criminal acts.

8. The Tribunal did not accept the appellant’s claim that the first appellant moved from place to place upon his return to Dhaka. The Tribunal found the claim to be inconsistent with the addresses on his passport and visa application. The Tribunal further did not believe the appellant’s claim that he was threatened in 2009 and found that the appellant lived in Dhaka for some sixteen months without experiencing any problems.

9. The first appellant further claimed that after the September 2009 incident, groups of people came to his home chanting slogans against him, threatened to kill him and brought a false legal claim against him. The Tribunal did not accept these claims. The Tribunal found that it was implausible that Awami League associates would show this level of interest in the appellant since he had ceased charitable work with the BNP.

10. The Tribunal noted that the Awami League is now in power in Bangladesh and found that as he has not worked in the social secretary role since 2008 he is no longer of interest to the Awami League. For the same reason the Tribunal did not accept the claim that the first appellant would suffer serious harm due to his political opinion as a member and supporter of the BNP.

11. For completeness, the Tribunal noted that the first appellant has joined BNP Australia but noted that he did not claim to fear harm due to his membership of BNP Australia. The Tribunal also did not accept that the authorities in Bangladesh have or will withhold protection from the first appellant on a selective and discriminatory basis.

12. For the above reasons the Tribunal affirmed the decision of the delegate that the appellant was not a person to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees 1951.

    APPLICATION TO THE FEDERAL MAGISTRATE’S COURT

13. By the amended application filed 15 December 2011, the appellants sought writs of certiorari, mandamus and prohibition in respect of the Tribunal’s decision. The appellants advanced the following grounds of review and in summary claimed that:

    1.The Tribunal did not consider the first appellant’s mental condition and that he was upset at the time of the hearing.

    2.The Tribunal failed to link the first appellant’s attack and harassment with his political opinion.

    3.The Tribunal failed to consider the first appellant’s fear of persecution under s 91R of the Migration Act.

14. In response to the first ground Raphael FM found (at [11]) that the Tribunal did consider the first appellant’s mental condition and anxiety. His Honour referred to the following extract from the Tribunal’s decision:

    The applicant said he was not feeling well and he was upset. The Tribunal put to the applicant that if he now wants to amend his evidence and state that the problems were in 2008, the Tribunal will consider that.

15. The Tribunal later stated:

    The Tribunal acknowledges that the applicant may have been anxious at the hearing. For this reason it explained its difficulty with the evidence and it provided him several opportunities to explain or amend the evidence he had provided in relation to the timing of the particular events.

16. His Honour concluded that any anxiety suffered by the appellant did not properly explain the contradictions in his evidence. His Honour held that it was part of the Tribunal’s duty to decide how any ‘mental concerns’ raised by the appellant might affect the proceedings and to make its determination accordingly. Provided such concerns are considered, the Tribunal fulfilled its responsibility.

17. As to the second ground, his Honour noted that a Tribunal must not assume that the extortion or threat is motivated by only one reason: see Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 166 ALR 641; Ramirez v Minister for Immigration and Multicultural Affairs (2000) 176 ALR 514. His Honour considered the authorities and concluded that since the Tribunal in this instance had addressed the possibility of extortion motivated by a Convention reason and rejected such possibility on the evidence before it, no jurisdictional error resulted.

18. As to the third ground, his Honour found that it amounted to a complaint that the Tribunal failed to take into account relevant material or took into account irrelevant material. However, the appellant did not direct his Honour to any portion of the Tribunal proceedings which would have supported such claim.

19. In his submissions the first appellant added a claim that the Tribunal obtained information in relation to his political activities in Bangladesh and had not provided him with those details pursuant to s 424A of the Migration Act1958 (Cth). His Honour found that the Tribunal used such information to support the first appellant’s claims and therefore the circumstances could not be said to fall within s 424A: see Minister for Immigration and Multicultural Affairs v Al-Shamry (2001) 110 FCR 27. Accordingly the application was dismissed.

    THE APPEAL

20. In the Notice of Appeal filed on 20 March 2012 the appellants repeat the grounds presented before the Federal Magistrate, which are referred to in this decision at [13]. The same relief is also sought.

21. The appellant provided written submissions to the Court. With respect to the first ground of appeal, the appellant submits that although the Tribunal acknowledged he was anxious at the hearing, it did not specify in what way that might have affected his evidence. With respect to the second ground, the appellant submits that the Tribunal erred in applying the ‘real chance test’, as seen in its conclusion that because there had been no attacks on the appellant for a period of 16 months while the appellant resided in Bangladesh, there would not be any attacks upon his arrival. The appellant finally submitted that the Tribunal had failed to consider whether the appellant’s political activities with the BNP in Australia would result in persecution upon his return.

22. At the hearing, the appellant was provided with the opportunity to elaborate upon his written submissions. The appellant was content to rely on his written submissions, but he indicated in reply that he feared persecution in Bangladesh and that the Tribunal had not considered his political activities in Australia.

    CONSIDERATION

23. The bulk of the appellant’s Notice of Appeal does not allege any particular error in the decision of the learned Federal Magistrate. It merely seeks to restate the issues already raised in the court below. Such issues have been comprehensively addressed in Raphael FM’s judgment. The Court has considered the decision of Raphael FM for itself and finds that there is nothing to indicate the existence of jurisdictional error.

24. As to the claim that the appellant was ‘anxious’ when he appeared before the Tribunal, there is no evidence to suggest that the appellant was suffering from any mental condition. It was only after the Tribunal pointed out to him that his evidence was inconsistent that the appellant made such a suggestion. However, there is nothing to suggest that the appellant was unfit or too unwell to answer questions or provide evidence to support his claim. That is, there is no material from which the Court could conclude that the appellant was denied a meaningful opportunity or chance to present his claims: see for example Opitz v Repatriation Commission (1991) 23 ALD 40.

25. As to the second ground, the Federal Magistrate considered such ground. The Court finds no error in his decision, nor in that of the Tribunal.

26. With respect to the appellant’s submission regarding the alleged failure of the Tribunal to consider the appellant’s political activities within Australia as a potential source of persecution, the Tribunal stated at [127] that it accepted that the appellant became a member of the BNP Australia. However at [128] the Tribunal found that the appellant did not claim serious harm in Bangladesh due to his membership of the BNP in Australia.

27. The appellant seems not to have raised this issue in the court below. The Tribunal is not obliged to consider grounds for persecution which are not raised before it by an applicant in their application or in their submissions. In any event, no evidence was provided to this Court as to how the appellant’s political activities in Australia would engender a risk of persecution upon his return to Bangladesh. Accordingly the Court declines to grant leave to raise such ground, if it is in fact a new ground.

28. For the above reasons, the appeal is dismissed.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:       15 June 2012