SZRBN and Ors v Minister for Immigration and Anor (No.2)
[2018] FCCA 3017
•23 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRBN & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2018] FCCA 3017 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants claiming a fear of harm in Bangladesh, relevantly from extremists due to perceived wealth as returnees – relevant fear found not to be well-founded – whether the Tribunal lawfully considered that claim considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.36A |
| Cases cited: Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473; [2003] HCA 71 Minister for Immigration v Guo & Anor (1997) 191 CLR 559; [1997] HCA 22 NABEvMinister for Immigration (No 2) (2004) 144 FCR 1 SZGIZv Minister for Immigration (2013) 212 FCR 235; (2013) 299 ALR 246; (2013) 138 ALD 1 SZRBN v Minister for Immigration & Anor [2012] FMCA 384 SZRBN v Minister for Immigration [2012] FCA 984 |
| First Applicant: | SZRBN |
| Second Applicant: | SZRBO |
| Third Applicant: | SZRBP |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 907 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | LMP Immigration Lawyers |
| Solicitors for the Respondents: | Ms K Hooper of Minter Ellison |
ORDERS
The application as amended by leave on 24 October 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 907 of 2017
| SZRBN |
First Applicant
| SZRBO |
Second Applicant
| SZRBP |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 1 March 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
The following statement of background facts is derived from the submissions of the parties.
The applicants are nationals of Bangladesh. They are husband (applicant), wife (second applicant) and child (third applicant).
An application for protection visas was lodged on 18 February 2011.[1] The basis of the application was stated in that form to be that[2] the Italian mafia threatened to kidnap the applicant’s son and kill him, and that the applicant used to belong to the Bangladesh National Party (BNP) and he and his family had been attacked. That application was rejected by a delegate of the Minister on 13 April 2011,[3] and eventually by the then Refugee Review Tribunal (RRT) on 9 December 2011.[4] There the administrative aspects of the matter would have concluded but for the introduction of s.36(2)(aa) into the Migration Act 1958 (Cth), and the judgment of the Full Federal Court in SZGIZvMinister for Immigration.[5]
[1] Court Book (CB) 1 ff
[2] at CB 17
[3] CB 44–55
[4] CB 69-94
[5] (2013) 212 FCR 235; (2013) 299 ALR 246; (2013) 138 ALD 1
The decision of the RRT records that it discussed with the applicant his claimed difficulties in Bangladesh.[6] The applicant claimed that he believed that because he had been living outside Bangladesh, they [the Awami League] might ask him for money.[7] The RRT asked whether the second applicant had been asked for money. The RRT recorded that the applicant replied, “they had not but in Bangladesh these sorts of incidents happen all the time”. Subsequently,[8] the RRT put to the applicant that at the first hearing before it, the applicant had referred to a fear of being extorted if he were to return to Bangladesh. The RRT recorded:
The applicant stated that this is his impression or understanding. Those who live abroad and those who are foreign are viewed as affluent. This is just his feeling that they might think he has money and he is afraid because of this. …
[6] at CB 77[47]
[7] CB 79[55]
[8] CB 84[81]
When the absence of any apparent Convention nexus was put to the applicant, he claimed:[9]
that the people doing it "all have some political colour" so he does not think that they are doing it for any other motivation. They are all political persons. … The Tribunal asked him whether he thought he would be subject to extortion if he returned to Bangladesh if he had not been a BNP member. He replied that he does not know what is going to happen if he returns but what they are doing now is the result of past things.
[9] CB 84[81]
The RRT found[10] that the applicant did not genuinely hold a fear of extortion because he had expressed this claim “as ‘just a thought’” but, even if he did have such a fear, the RRT found there was only a remote chance of it eventuating. The applicant had suggested he would suffer extortion because he would already be targeted because of his former political opinion, and the RRT had rejected that the applicant would be a person of any interest. Further, the applicant and his wife had returned to Bangladesh with a sum of money without being subject to extortion, and had spent considerable time in Bangladesh without experiencing any such harm.
[10] at CB 92-93[113]
The applicants sought judicial review of the RRT's decision, unsuccessfully.[11]
[11] SZRBN v Minister for Immigration & Anor [2012] FMCA 384, affirmed on appeal in SZRBN v Minister for Immigration [2012] FCA 984
A second application, anticipating SZGIZ, was lodged under cover of a letter dated 27 February 2013.[12] The application was eventually accepted as valid.[13] The basis of that application was that the applicant is a supporter of the BNP and that recent country information confirms that the political situation continued to worsen and Awami League supporters had unleashed violence against BNP members. He feared that he would face significant harm in Bangladesh at the hands of Awami League supporters.[14]
[12] CB 95-141
[13] CB 198-203
[14] CB 115
Despite the applicant stating that a detailed statement was to follow, there was none. The applicants were invited to an interview on 30 April 2014.[15] The claims put forward in that interview were:[16]
a)the applicant’s brother who lives in Australia returned to Bangladesh for their father’s funeral in January 2014. Awami League activists approached his brother and asked about the whereabouts of the applicant;
b)in the applicant’s local area his political colleagues had been harassed by opposition party members, and BNP leaders had been harassed and arrested many times by the Awami League; and
c)the Awami League had wanted to harm him because of his political activities from 1990 to 1995. He had been a leader of his BNP group and had led processions and rallies that had turned violent. His opponents would not forget this and would mean to take revenge for past violence.
[15] CB 210
[16] summarised at CB 245-6
The delegate,[17] whilst accepting that political violence was endemic in Bangladesh, did not accept that the applicant or his family had in the past been subjected to harm because of his political activities. He also adopted the finding of the previous RRT that during his time in Italy he visited Bangladesh for about two months in 2004, three weeks in 2007 and six weeks in 2010-11. He and his wife claimed that during the 2007 and 2010 visits, political enemies came looking for him, including at the place where they were living.
[17] CB 246-7
The delegate also found that even if he were to accept that the applicant had been a general supporter of the BNP there was nothing significant to distinguish him from the vast number of active BNP supporters throughout the country. Additionally he had by then been absent from Bangladesh for over 18 years, which would significant reduce any profile he may previously have had.[18]
[18] CB 251
The Tribunal’s review
The applicants sought review of the delegate's decision by application to the Tribunal lodged on 31 March 2015.[19] They were invited to attend a hearing before the Tribunal, by letter dated 21 September 2016.[20]
[19] CB 256
[20] CB 268; 270
Two hearings were held by the Tribunal, the second made necessary because the second applicant had been ill. The Tribunal, in its reasons for decision at [37],[21] stated that the applicant mentioned at the hearing that he may be targeted in Bangladesh because he would be returning from abroad and would be presumed to have money.
[21] CB 361
On 22 November 2016, the applicants' representative provided the Tribunal with detailed written submissions.[22] Those submissions commenced by identifying the applicant's claims, said to be those explained in his “statement” (although no statement had been provided). It was submitted that the applicant feared harm because of his support of the political ideologies of the BNP and that there was no meaningful option of relocation or State protection.
[22] CB 285
The submissions proceeded to extract what were identified as quotations from independent country information. Parts of the sources quoted were emphasised in bold. Broadly, those emphasised parts, and the extracted information more generally, concerned the human rights and security situation in Bangladesh, particularly with regards to political violence, and harm to political activists. On the basis of the country information, the applicants' representative set out a lengthy series of submissions in dot points, commencing at CB 292. No reference was made to any claimed fear of extortion. At CB 302-303, the representative's submissions concluded with a series of propositions,[23] none of which made reference to extortion, the applicant's profile (such as his being a returnee), or perceived wealth, or any similar matter.
[23] at [43]
However, a second set of submissions dated 5 December 2016[24] added to the previous submissions and also cited evidence of extortion practised by members or supporters of the Awami League, as well as police and a paramilitary National Security Force.[25] That evidence may be summarised as follows:
a)businessmen were being targeted for extortion and murder and the business community was being urged to act on the problem;
b)dwellers, traders and shop owners in three areas of Dhaka have been held hostage to “illegal payment collection”;
c)it was alleged that criminals with the help of the ruling party were attacking the weaker sections of society in order to capture land and for extortion; and
d)ruling party affiliates and “bad cops” have been extorting huge sums from Dhaka’s more than 2.5 million poor footpath hawkers.
[24] CB 310-322
[25] CB 312-322
It was submitted that the applicant would be seen as a person of wealth and would face persecution for that reason, and because of his previous political allegiance.[26]
[26] CB 322
On 1 March 2017, the Tribunal affirmed the delegate's decision.[27]
[27] CB 356
The Tribunal had regard to the evidence and claims made by the applicant as part of his first protection visa application, as outlined in the RRT's decision.[28] The Tribunal identified[29] that the applicant had claimed that he may be targeted in Bangladesh because he would be returning from abroad and would be presumed to have money. No evidence was provided that the applicant or his family had been targeted on previous return visits to Bangladesh for this reason, noting evidence that the first and second applicants had previously returned to Bangladesh with €20,000-€25,000. The Tribunal referred to country information from the Department of Foreign Affairs and Trade[30] which included information to the effect that political party members and activists had targeted opposition party business owners for extortion.
[28] at [24]
[29] at [37]
[30] at [43]
The Tribunal accepted the applicant had some involvement with the BNP prior to 1995.[31] The Tribunal found the applicant faced limited difficulties due to this historical involvement.[32] The Tribunal identified a series of credibility concerns that it held.[33] Considered cumulatively and making various allowances,[34] the Tribunal rejected the applicants' claims as to events between 2007 and 2010.[35] The Tribunal was not satisfied that the applicant faced a real risk of significant harm on the basis of his past BNP involvement.[36] The Tribunal noted the applicant's evidence that he had not been politically involved in 20 years and had no intention of continuing political involvement[37] and, including by reference to independent country information, concluded that the applicants did not satisfy the complementary protection criterion.
[31] at [56]
[32] at [57]
[33] from [58]
[34] at [92]
[35] at [96]-[97]
[36] at [99]
[37] at [101]
Of particular relevance to the present application are the Tribunal's findings at [103]-[104]:
The applicant has made a claim that he fears being extorted on return to Bangladesh. Following the first hearing, the applicant's adviser provided independent information which indicates that extortion does occur in Bangladesh, perpetrated by Awami League politicians, including directed towards businesses. The applicant told the Tribunal that he had never previously been extorted. The Tribunal reminded the applicant of prior evidence that he had returned to Bangladesh from Europe with €20,000-€25,000. The Tribunal indicated that, although it acknowledged that there was evidence that extortion occurs in Bangladesh, it was not inclined to consider that there was a real risk of this happening to the applicant, given no past difficulties in this respect. The Tribunal also does not consider that the independent evidence would suggest that every Bangladeshi is at risk of significant harm due to being extorted. The Tribunal does not consider there is evidence to establish any risk profile applicable to the applicant that would increase the risk to him. For example, the applicant is not a businessm[a]n. To the extent that there is a claim that the applicant, having lived in a Western country, would cause him to be targeted, the applicant has not claimed that he [has] been previously targeted on such a basis, nor has any independent evidence been provided that would suggest that this regularly occurs.
For these reasons, the Tribunal is not satisfied that the applicant faces a real risk of significant harm on the basis of being extorted, including on the basis that he has lived in a Western country.
The present proceedings
These proceedings began with a show cause application filed on 27 March 2017. The applicants now rely upon an amended application filed on 10 October 2018, for which leave was granted at the trial of this matter on 24 October 2018.
There is one ground in the amended application:
The Tribunal erred in failing to consider a claim, arising clearly from the evidence, that upon return to Bangladesh, the applicant, being a returnee from a western country may be a target of convenience, and thus may be at risk of extortion in the future.
The only evidence I have before me is the court book filed on 25 May 2017.
Both the applicants and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial.
Consideration
Applicants’ submissions
The following points need to be made about the applicant’s claim of being at risk of extortion and the Tribunal’s treatment of it:
a)the applicant and his family, whilst living in Italy, visited Bangladesh for two months in 2004, for three weeks in 2007, and for six weeks in 2010-2011;
b)the country information cited in the second submission to the Tribunal dated from 2009-2015;
c)that information, viewed sensibly, indicates that extortion is opportunistic, that the evidence of extortion suggests that it is directed at targets of convenience; that is to people who have, or are presumed to have money and cannot defend themselves; and
d)the Tribunal’s finding that the applicant had not been extorted in the past assumed that the future would reflect the past.
The deficiencies in the Tribunal’s assessment are said to be, first, that by limiting its consideration to those with an identified “risk profile” the Tribunal failed to consider the evidence of extortion in context and in particular whether the applicant, as a person who may be presumed to have money, might be at risk if removed to Bangladesh not for a week, or for a couple of months, but permanently.
The error of law, going to the Tribunal’s jurisdiction is said to be that the Tribunal failed to consider a claim, arising clearly from the evidence, that the applicant, as a target of convenience, may be of risk of persecution in the future. This is said to be an error of the kind referred to in NABEv Minister for Immigration (No 2)[38] at [55]-[63].
[38] (2004) 144 FCR 1
Minister’s submissions
The applicants' sole ground of review alleges that the Tribunal erred in failing to consider a claim, arising clearly from the evidence, being that upon return to Bangladesh the applicant, being a returnee from a Western country may be a target of convenience, and thus may be at risk of extortion in the future.
As has been set out in the detailed summary of relevant factual background above, the applicant's claim with respect to the potential for him to be targeted for extortion in Bangladesh was not independent from his claims with respect to the political situation in Bangladesh and his past political involvement.
The Tribunal is said to have both identified and dealt with the extortion claim, as put to it. It was open to the Tribunal to place weight on the absence of any past extortion experienced by the applicant, including in circumstances where he had returned to Bangladesh with a significant sum of money, in its forward looking assessment.[39] It was also open for the Tribunal to place weight upon independent country information bearing on its assessment, and to have regard to the absence of any profile on the part of the applicant suggestive of an increased risk to him. Contrary to the application to the Court, the Tribunal is said to have expressly considered whether the applicant's being a returnee from the West supported a finding that the applicant faced a real risk of extortion.
[39] see Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 574–575; [1997] HCA 22; Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473; [2003] HCA 71 at [58]
Resolution
In my opinion, the Tribunal did not overlook any element or integer of the applicant’s claims. First, the Tribunal’s conclusion at [103][40] needs to be read in the context of how the claim was put, which is recited at [37],[41] where the Tribunal stated:
The applicant also mentioned in the hearing that he may be targeted in Bangladesh because he will be returning from abroad and he will be presumed to have money. No evidence was provided that the family had been targeted on previous return visits to Bangladesh for this reason. Evidence was noted that the applicant and his wife had previously returned to Bangladesh with €20,000 -€25,000.
[40] CB 370-371
[41] CB 361
The claim advanced was that the applicants were at real risk of significant harm from extortionists because they would be returning from abroad and would be presumed to have money. The evidence before the Tribunal established that one or other of the applicants had made visits to Bangladesh in 2004, 2007 and 2010-2011, albeit for limited periods, and no extortion attempt had been made. The Tribunal was entitled to have regard to the absence of past harm in those returns to Bangladesh.
Secondly, while the Tribunal was presented with country information indicating that particular groups in Bangladesh might be at risk of being extorted (street traders, other businessmen or in some cases residents of a particular area), there was nothing to indicate that returnees as a class were at any particular risk.
In my opinion, the Tribunal made a lawful assessment of the risk of harm facing the applicants on return to Bangladesh from extortionists and, in the absence of any evidence of past harm, and in the absence of any evidence supporting an assessment of the risk faced by the applicants as returnees, the conclusion reached by the Tribunal was open to it, on the material before it. Moreover, for the purposes of the present application, I am not persuaded that anything material was overlooked by the Tribunal in its assessment of the claim.
Conclusion
The applicants have failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 23 November 2018
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