SZRAJ v Minister for Immigration and Citizenship

[2012] FCA 1237

FEDERAL COURT OF AUSTRALIA

SZRAJ v Minister for Immigration and Citizenship [2012] FCA 1237

Citation:		SZRAJ v Minister for Immigration and Citizenship [2012] FCA 1237
Appeal from:		SZRAJ & Ors v Minister for Immigration & Anor [2012] FMCA 484
Parties:		SZRAJ, SZRAK, SZRAL and SZRAM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 884 of 2012
Judge:		LANDER J
Date of judgment:		9 November 2012
Date of hearing:	7 November 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	62
Counsel for the First, Second, Third and Fourth Appellants:	The First Appellant appeared in person, representing all Appellants
Counsel for the First Respondent:	Ms B Tronson
Solicitor for the First Respondent:	Minter Ellison
Counsel for the Second Respondent:	There was no appearance for the Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 884 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZRAJ
First Appellant

SZRAK
Second Appellant

SZRAL
Third Appellant

SZRAM
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	9 NOVEMBER 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The first appellant pay the first respondent’s costs.

Note: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 884 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZRAJ
First Appellant

SZRAK
Second Appellant

SZRAL
Third Appellant

SZRAM
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE:	9 NOVEMBER 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from an order of a Federal Magistrate made on 7 June 2012 dismissing the appellants’ application for judicial review and ordering the first and second appellants to pay $6,471 in costs. 

2. The four appellants are citizens of Bangladesh.  The appellants are a husband and his wife, and their two children. 

3. On 13 June 2010, the appellants arrived in Australia on sponsored family visitor visas. 

4. On 7 July 2010, the first appellant (the husband) applied to the Department of Immigration and Citizenship for a protection (Class XA) visa with the second, third and fourth appellants as members of his family unit.

5. On 19 January 2011, a delegate of the first respondent refused the application for the visa.

6. On 12 February 2011, the appellants applied to the Refugee Review Tribunal (RRT) for a review of that decision.

7. On 5 December 2011, the RRT affirmed the decision of the delegate.

8. On 3 January 2012, the appellants filed an application (amended on 22 March 2012) in the Federal Magistrates Court seeking judicial review of the RRT’s decision.  That application was dismissed on, as I have said, 7 June 2012.

9. The appellants now appeal to this Court.

   Proceeding before the RRT

10. The first appellant claimed to be a leader in the Bangladesh Nationalist Party (BNP) and claimed a well-founded fear of harm from the rival political party, the Awami League.  He claimed to have been involved since his college days in 1984 and was a student leader.  At the time of his departure to Australia he was an executive member in the central committee of the Cittagong BNP.  He stated that he was self employed in the railway industry and had made generous donations to the BNP.

11. During the 2008 elections, he campaigned for two BNP candidates but the Awami League won the election.  He claimed that after the election the Awami League retaliated against BNP supporters and extorted money from the first appellant.  He claimed that he and other BNP colleagues complained to the Awami League but without success.  He also complained to the BNP leaders but was told to remain quiet and attempt to negotiate a lesser payment.  The first appellant claimed that he negotiated a deal with the Awami League by which he paid a lump sum to the Awami League.  However, the Awami League failed to keep its word and demanded more money from the first appellant.  He refused and as a result was assaulted and intimidated by them.  The first appellant lodged a complaint to the police but the police refused to accept it.  The first appellant then closed down his bank accounts and moved his family to a different location to give the impression that he had closed down his business.  The Awami League continued the extortion requests.  As a result the first appellant closed down his business permanently.

12. He claimed to have received a death threat and that his son was intimidated by a man with a gun whilst playing in the playground.  He also claimed that his home was ransacked after an Awami League rally.  As a result of these threats, the appellant moved his family to live with his aunt in another part of Chittagong.

13. The first appellant claimed that in November 2009 he was attacked on his way home.  He claimed that the next day, stones were thrown at his aunt’s house.  Following the attacks he moved to Dhaka to live with his sister but was identified by an Awami League youth leader there.

14. The first appellant stated that his friend Babu, who was also a BNP member, was killed as a result of political violence in 2010.  He claimed that he would suffer the same fate if he returned to Bangladesh.

15. He provided corroborative evidence including a letter purportedly written by him to the Police Station dated 9 November 2009, academic records and photographs.  He also provided a letter from his brother, a letter from the President of the BNP in Australia and news clippings about the murder of a high profile BNP leader.

16. The RRT found that some of the first appellant’s evidence was exaggerated.

17. The RRT found that the first appellant had supported the BNP since his college days but did not accept that he had a high profile as claimed.  The RRT found the first appellant’s level of involvement to be low, although it accepted that he had assisted in the 2008 election campaigns.

18. The RRT accepted that the first and third appellants had been intimidated by the Awami League supporters prior to the 2008 election but had not been harmed.  The RRT accepted that the first appellant’s house had been ransacked by Awami League supporters in January 2009 but found that it was unlikely to occur again as country information suggested a high level of political violence only occurs during election periods.

19. The RRT did not accept that the loss of political patronage in the first appellant’s business amounted to persecution.  The RRT found the essential and significant reason for the extortion was not due to the appellant’s political opinion, but rather, the reasons were that the first appellant was seen as a successful businessman, there was personal animosity between the appellant and his persecutor, and “he was not in political favour at the time”.

20. The RRT held that the letter from the first appellant to the police was fabricated to support the visa application and should therefore be disregarded.

21. The RRT did not accept that the first appellant was attacked in November 2009 after a party function.  The RRT stated that the appellant had refused to pay the sums to the Awami League leader and argued that the attacks were for the non-payment rather than because of the first appellant’s political opinion.

22. The RRT found the first appellant would not be targeted in the same way as his friend Babu.

    Proceeding in the Federal Magistrates Court

23. In his amended application, the first appellant relied upon the following grounds:

    1.The Tribunal’s decision was affected by jurisdictional error in that the Tribunal failed to consider whether there was a real chance that the applicants would suffer persecution in the future.

    Particulars

    The Tribunal found that the First Applicant was an active supporter of the Bangladesh Nationalist Party (BNP) who had been actively involved in the elections of December 2008.  The Tribunal found that having lost those elections the political activity of the BNP had lessened, and that as a result the Applicant was not in any current danger.  The Tribunal failed to consider whether the Applicant would be in danger of persecution if he continued his political activities in support of the BNP during the next election.

    2.The Tribunal erred in the manner in which it considered the option of relocation to another part of the country.

    Particulars

    The Tribunal considered that it was possible for the Applicants to move to Dhaka to live with the First Applicant’s sister, but did not consider the financial or social situation of the sister, or any other considerations, to properly determined whether such relocation would be reasonable.

    3.        The Tribunal made findings of fact without any evidence to support them.

    Particulars

    The Tribunal made a finding that the First Applicant’s opponents only intended to intimidate him by leaving a shroud in front of his home and showing his son a gun, because if they intended to harm them they would have done so.  The Tribunal came to this conclusion without any evidence as to the real intention of the political opponents.

24. In his reasons, the Federal Magistrate found that the RRT had accepted much of the first appellant’s evidence.  The focus of the decision was on the reasoning of the RRT’s conclusions on whether the appellant would face serious harm in the foreseeable future.

25. The Federal Magistrate accepted that the RRT’s decision was not without its difficulties.  Country information had shown an increase in politically motivated violence during the election period.  Consequently, His Honour concluded that one could draw the conclusion that the first appellant would likely to suffer persecution during the next election.  However, the Federal Magistrate found that the RRT expanded on its reasoning and said that as the first appellant did not fall into the class of high profile leaders, he would not be subject to a risk of harm amounting to persecution.  The Federal Magistrate found that this conclusion was reasonably open to the RRT on the evidence before it.

26. In relation to the extortion demands made by the Awami League members, the Federal Magistrate recognised the apparent conflict in the RRT’s reasons but held that what the RRT meant was that although political affiliation was a factor, the dominant factors were due to the personal animosity and the first appellant’s success as a businessman.

27. In response to the grounds set out in the appellants’ amended application, the Federal Magistrate held that the RRT had dealt with the issue of future harm.  His Honour was of the view that the RRT’s discussion on relocation was unnecessary as the RRT was not satisfied that the first appellant had a well-founded fear of persecution.  For ground three, the Federal Magistrate agreed with the Minister’s submission that it lacked substance.  The Federal Magistrate found that the inferences drawn by the RRT were a matter for the RRT as part of its fact finding process.

28. Accordingly the application was dismissed.

    The Appeal Proceeding

29. The first appellant relied upon the following grounds of appeal:

    1.The Refugee Review Tribunal failed to consider whether there was a real chance that we would suffer persecution in the future if we returned to our home country of Bangladesh.  The Court below failed to consider this issue.

    2.The Refugee Review Tribunal erred in the manner in which it considered the option of relocation to another part of the country.  The Court below failed to consider this issue.

    3.The Refugee Review Tribunal made finding (sic) of fact without any evidence to support them and ignored our vital claims.  The Court below failed to consider this issue.

30. The appellants were unrepresented on the appeal but did file written submissions and the first appellant made further oral submissions at the hearing.  The written submissions provided some particularity for the grounds of appeal.  The oral submissions were mainly directed to the merits of the decision.

31. The grounds all complain of error on the part of the RRT and that the Federal Magistrate failed to consider three separate issues.  The complaint that the Federal Magistrate failed to consider the issues in grounds 1 and 2 cannot be upheld because, plainly, those issues were considered by the Federal Magistrate.  However, as the Minister contended, the grounds should be read as if the Federal Magistrate failed to find that the RRT had erred in the manner in which it addressed the two separate issues.

32. The RRT did consider, as it was obliged, whether there was a real chance that the first appellant would suffer persecution if he and his family returned to Bangladesh.  That was the issue before the RRT and the question that had to be resolved.

33. The RRT resolved it adversely to the first appellant by finding that the first appellant would not be persecuted for any Convention reason if he were to return to Bangladesh.

34. The RRT made a series of findings in paragraphs 198 to 202 of its reasons, which indicate that the RRT considered the appellants’ claims in their entirety against the proposition if the appellants were to be returned to Bangladesh now or in the foreseeable future.

35. The RRT determined that if the appellants were to be returned to Bangladesh now or in the foreseeable future, the appellants, and in particular the first appellant, would not be persecuted for a Convention reason.  Moreover, the RRT found that the first appellant would not be targeted for harm if he engaged in political activities for the BNP, even though his home had been attacked in January 2009.  The RRT reasoned that similar conduct was unlikely in the foreseeable future because the election campaign was well and truly over.

36. The effect of the appellants’ first ground of appeal is to raise the issue of merits which, of course, is impermissible; the merits being for the RRT.  So much was recognised by the Federal Magistrate in his reasons where he said that the appellants’ disagreement with the answers given by the RRT could not be sustained because the answers were for the RRT.

37. Because the RRT found that the appellants, and in particular the first appellant, would not suffer persecution for a Convention reason if the appellants were returned to Bangladesh, ground 2 only becomes relevant if the appellants succeed on either ground 1 or ground 3 and persuade this Court that the decision by the RRT was in error and could not be sustained.

38. The RRT found that if the appellants were to return to Bangladesh the appellants could be successfully relocated in areas apart from Chitttagong and, in particular, Dhaka.  The RRT found that the first appellant did not, on his own evidence, have a political profile in Dhaka and that he has previously lived at Dhaka with his sister who still resides in that city.

39. The effect of the finding at paragraph 205 of the RRT’s reasons is that the appellants could be relocated in that city.  The RRT dealt with the question of relocation in an orthodox manner.

40. However, the second ground of appeal cannot be upheld for the further reason that no relocation finding was necessary, having regard to the principal finding that the first appellant would not suffer persecution for a Convention reason if he were to return to Bangladesh.  Once that finding was made, there was no need for the RRT to address the question of relocation.

41. The Federal Magistrate dismissed this ground for that reason and, in my opinion, he was right to do so.

42. The Federal Magistrate found that the relocation finding would not have sustained the decision, if the RRT had been of the opinion that the appellant and his family would suffer persecution for a Convention reason if they were to return to Chittagong.  That finding was the subject of a notice of contention, which the Minister applied to file in Court at the hearing of the appeal.

43. For reasons I will give later, I refused that application.  Therefore, I make no further comment upon his Honour’s finding that the relocation finding would not have sustained the decision, if the RRT had been of the opinion that the first appellant and his family would suffer persecution for a Convention reason if they were to return to Chittagong.

44. The third ground, it was said by the Minister, in written submissions, was not raised before the Federal Magistrate and should not be considered on the appeal.  However, at the hearing of the appeal the Minister abandoned the objection to ground 3 and addressed ground 3 on its merits.

45. There are two aspects of ground 3.  The first is that the RRT made a finding of fact without any evidence to support the finding.  That ground is better particularised in the appellants’ written submissions, which identify the finding of fact in paragraph 181 of the RRT’s decision where the RRT said:

    I do not accept that the Awami League workers had an intention to physically harm the applicant or his son.

46. That finding must be put in the context of the whole of the paragraph, which reads:

    The applicant gave evidence, which I accept, that prior to the December 2008 elections a shroud was left in front of his home in 2008 and that his son was shown a gun by an Awami League worker when he was playing in a field near the applicant’s office.  The applicant has been consistent in describing these incidents and provided some peripheral information which indicated that these incidents had taken place.  I accept that these acts may have been part of a local campaign by some Awami League workers to intimidate him and to express their hostility to his BNP affiliations.  However, neither the applicant nor his son were physically harmed and I do not accept that the Awami League workers had an intention to physically harm the applicant or his son.  If they had, I consider they would have done so rather than to make such indirect messages.

47. The conclusion arrived at by the RRT is an inference from the facts to which reference is made.  The inference drawn by the RRT was that the evidence did not support a finding that the Awami League workers had an intention to physically harm the applicant or his son.  In the absence of any physical harm to the first appellant or his son, that was an inference that was available.  The RRT did not need to have any further evidence other than that to which it has referred for arriving at the conclusion at which it has arrived.

48. The second aspect of the third ground is the complaint that the RRT ignored the appellants’ vital claims.

49. That aspect of ground 3 is also better particularised in the appellants’ written submissions.  In their written submissions, they say:

    We claimed before the Tribunal that we lost the railway contract because of political nepotism.  We also claimed that Mr Latif, a Awami League member demanded money from us.  However the Tribunal just made a comment that these were (sic) not happened on the basis of political reasons and as a result it did not comply (sic) the Convention ground.

    We submit that the Tribunal failed to recognise the real issue of my job loss and extortion demand.  And as such we submit that the Tribunal ignored our vital claims for political persecution.

50. This aspect of ground 3 can also not be upheld.  It is clear from the RRT’s reasons that it did consider the appellants’ claim that railway contracting in Chittagong involved a certain amount of political nepotism.  It found that such a claim was consistent with country information, which suggested a high level of political corruption in Bangladesh.  The RRT accepted that the first appellant’s contracting business was successful during the period in which the BNP was in government, because the first appellant had BNP political connections.

1. However, the RRT found that after the Awami League gained office in January 2009, the first appellant’s political connections were no longer in power and were unable to give favourable attention to his tenders and that was the reason why his business suffered.  In other words, the RRT found that the success of the first appellant’s business depended upon the BNP being in power and rewarding its supporters.

2. The RRT also addressed the claim that Mr Latif demanded money from the first appellant, but did not accept that the demand for payment by Mr Latif was because of the first appellant’s political affiliations with the BNP, but rather because the first appellant was perceived to be a successful businessman and because of personal animosity toward the first appellant.

3. In my opinion, therefore, the claim that the RRT did not address vital claims cannot be sustained.

4. Ground 3 must also be dismissed.

5. For all of those reasons, I would dismiss the appeal.

6. At the hearing of the appeal, the Minister sought to rely upon a notice of contention which was dated 23 October 2012, and received by my chambers the following day, in the following form:

   The Second Respondent found the First Appellant could successfully relocate to areas of Bangladesh other than Chittagong, which finding constituted an independent basis for the Second Respondent’s decision not to grant the Appellants (sic) visas.

7. The notice of appeal was filed on 25 June 2012. Any notice of contention needed to be filed within 21 days after the notice of appeal had been served: rule 36.24 of the Federal Court Rules 2011 (the Rules).

8. The Minister sought an extension of time for the filing of the notice of contention.

9. The notice of contention was not filed within the time prescribed by the Rules and, for that reason, having regard to the inequality of the positions of the Minister and the appellants, I would not allow an extension of time for the Minister to file a notice of contention and therefore to rely upon it.

10. I am fortified in that decision by the failure of the Minister to provide any reason, or reasons, for the failure by the Minister to comply with the Rules.  A model litigant should comply with the Rules and, if seeking an indulgence, which the Minister was, explain frankly why it is that the indulgence is required.  The Minister did not do so and the indulgence should not be granted.

11. In the end result, it is of no consequence, because I am of the opinion that the appeal should be dismissed for reasons apart from the reason contained in the notice of contention.

12. There will be an order dismissing the appeal and an order that the first appellant pay the Minister’s costs on a party and party basis.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:       9 November 2012