SZRER v Minister for Immigration
[2012] FMCA 452
•31 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRER v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 452 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations. ADMINISTRATIVE LAW – Allegation that the Reviewer failed to apply the correct test and failed to consider all integers of the applicant’s claim. |
| Migration Act 1958, ss.36, 46A,195A |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 |
| Applicant: | SZRER |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | HUGH WYNDHAM IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 374 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 24 May 2012 |
| Date of Last Submission: | 24 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Bodisco |
| Solicitors for the Applicant: | Ford Criminal Lawyers |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 374 of 2012
| SZRER |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| HUGH WYNDHAM IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh who arrived at Christmas Island by boat on 9 November 2009. He lodged an application for a Refugee Status Assessment (“RSA”) dated 11 December 2009 alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
Subsequently, an officer in the department administered by the first respondent (“Minister”) advised the applicant that he had been assessed as not meeting the definition of a “refugee” under the Convention. That decision was then reviewed by the second respondent (“Reviewer”) who, on 4 June 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. It can be presumed that the applicant was in detention at the time of the RSA and subsequent review.
The evidence makes it clear that the applicant had no visa when he entered Australia at Christmas Island. In the circumstances and as provided by s.46A(1) of the Migration Act 1958 (“Act”), he cannot make a valid application for a protection visa. However, ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa.
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].
The applicant has made an application to this Court for judicial review of the Reviewer’s recommendation. He seeks a declaration that the Reviewer’s recommendation was not made in accordance with law and an injunction restraining the Minister from relying on that recommendation. In order to succeed he must demonstrate that the Reviewer’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].
For the reasons which follow, the application will be dismissed.
Background facts
The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection were set out on pages 3 to 13 of those reasons and are relevantly summarised below.
Entry interview
The applicant made the following claims during his entry interview on 9 November 2009:
a)he was a student leader of Mohammad Ershad’s party [i.e. the Jatiya Party] while at university. His role was to advise and counsel people to join their party;
b)after the fall of the Ershad government the police filed a case against him. He went into hiding as a result;
c)in 1996 he joined the Freedom Party and took on a recruiting role;
d)the Awami League, when in government, put his name on a blacklist; and
e)the Awami League came to his house to search for him. His family advised him to leave.
RSA application
The applicant made the following additional claims in support of his application for an RSA:
a)from 1983 to 1984 he was the student leader of the Jatiya Party’s student wing at his university. He was an “activist” and a “special worker”;
b)in late 1989 there was a mass demonstration against Ershad, the founder of the Jatiya Party and Bangladesh’s then-president. During that demonstration, which had been organised by Ershad’s political opponents the Bangladesh Nationalist Party (“BNP”) and the Awami League, two opposition party members were killed. Ershad was forced to resign shortly after;
c)in early 1990 fifty Jatiya Party activists, himself included, were charged with the murder of the two opposition party members. The police issued warrants for their arrest. Fearing for his safety, he went into hiding;
d)he left the Jatiya Party in 1991 because, given the arrest of its president and other members, he thought it would be difficult for the party to return to power;
e)in 1992 he joined the Freedom Party. He recruited members, organised meetings and was generally active in the party;
f)when the Awami League came into power in 1996 it banned the Freedom Party, arrested its leaders and blacklisted certain of its members. He went into hiding. However, after four years the situation was such that he could not stay in the city or the village as he thought that people would kill him. He left Bangladesh in 2001;
g)he continued to be blacklisted in Bangladesh and the warrant for his arrest remained outstanding.
Proceedings before the first independent merits reviewer
The recommendation the subject of these proceedings is the second such recommendation relating to the applicant. There was an earlier recommendation made on 19 June 2010.
In proceedings before the first independent merits reviewer, the applicant claimed that he had completed a Bachelors degree in 1992 and a Masters degree in economics in 1994. He claimed that after he finished university he worked for an insurance company but left in 1995 because the police were looking for him and because he was not earning enough money. He claimed that he was unable to find another job because, after the Freedom Party was banned in 1996, he was not able to stay in any one place for any length of time. He claimed that he left Bangladesh in 2001 because the situation became worse and he feared that he would be killed like many others.
Proceedings before the Reviewer
The applicant was interviewed by the Reviewer on 18 March 2011. He made no new claims at that interview, except to say that he would not be able to express his political opinion if he returned to Bangladesh.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before him, the Reviewer found that the applicant did not have a well-founded fear of persecution in Bangladesh for reason of his political opinion or for any other Convention reason. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The Reviewer found that the applicant’s account of his last ten or eleven years in Bangladesh lacked any credibility and did not accept that he had been placed on a blacklist or had false charges laid against him, noting that:
a)his answers at interview were “far from convincing” and even by his own description his political activity was very limited. The Reviewer could find no convincing indication in the applicant’s evidence that he was at any time a prominent member of the Jatiya Party or the Freedom Party;
b)the fact that the applicant did not leave Bangladesh for four to five years after the false charge was supposedly laid against him indicated to the Reviewer that there was no such charge and no entry in a blacklist;
c)the applicant was able to study and work unhindered for some time without any apparent effort by the police to find him at his university or workplace; and
d)if the applicant had a masters degree in economics as claimed, his inability to find work between 1995 and 2001 was inexplicable and unbelievable.
The Reviewer acknowledged that Bangladeshi politics was very “rough and tumble” and that people were attacked and killed by “[a]ll parties” from time to time. The Reviewer noted that, at the same time, people continued to express their opinions (including in public), joined political parties for and against the government of the day and voted accordingly. They did so, in the Reviewer’s opinion, without the expectation that they would be persecuted. For these reasons, the Reviewer did not accept that the applicant, in doing likewise, would be subject to the kind of systematic and discriminatory conduct required to satisfy the requirements of the Convention.
Proceedings in this Court
In his amended application the applicant alleged:
1.That the second respondent misunderstood the correct test to be applied under the Migration Act 1958.
Particulars
In finding that “Bangladeshi politics is very rough and tumble” and that “people are from time to time attacked and killed”, the Reviewer failed to apply the correct test under the Act in assessing whether the applicant would be subject to a well founded fear of persecution.
2.That the second respondent failed to deal with the full integers of the applicant’s claim.
Particulars
In making material findings only as to the prominence of the applicant in either the Jatiya Party or the Freedom Party, the second respondent failed to assess whether the applicant would be subject to a well founded fear of persecution on the basis of membership of the Freedom Party or his political opinions and prior membership of the Jaito Party.
The applicant expressed the view that the two allegations were interrelated. As a result, the two grounds were dealt with together in his submissions.
Applicant’s submissions
In para.28 of his reasons the Reviewer said:
The claimant’s account of his last 10 or 11 years in Bangladesh, however, lacks any credibility. His answers at interview with me were far from convincing. His explanation of his claim that he was well known on the campus of his university in his first year is an example. He effectively abandoned that claim, which reduced to there being a few people from Comilla whom he had come to know while a school student amongst the leadership of the party in the university. His political activity, even as he described it, was very limited. I can find no convincing indication in his evidence before me or previously that he was at any time prominent either in the Jatiya Party or in the Freedom Party.
In para.33 of his reasons the Reviewer said:
As was acknowledged by me at interview, Bangladeshi politics is very “rough and tumble”. People are from time to time attacked and killed. All parties are guilty. But, at the same time, people do express their opinions, including in public, orally and in print. People in very large numbers do join political parties for and against the Government of the day and speak and vote accordingly. They do not do so in expectation of being persecuted. I do not accept that, doing so, the claimant would be subject to the kind of systematic and discriminatory conduct required to satisfy the requirements of the Refugees Convention.
The applicant submitted that the Reviewer misconstrued and misapplied the test set out in Art.1A(2) of the Convention and s.36(2) of the Act. He submitted that the Reviewer’s findings turned on the following three propositions:
a)that people were from time to time attacked and killed in Bangladeshi politics;
b)that people who expressed their opinions and joined political parties opposed to the government did not do so in the expectation of being persecuted; and
c)in taking part in political activities the applicant would not be subject to persecutory harm.
The applicant submitted that the Reviewer asked the wrong question in relation to whether his, the applicant’s, fear of persecution was well-founded. He submitted that the Reviewer rejected his claim that he was a prominent member of the Jatiya Party or the Freedom Party but failed to make any findings as to whether he had been involved in politics in Bangladesh or would be involved on his return. He submitted that the Reviewer appeared to implicitly accept that he would become involved in politics on his return when he said:
I do not accept that, doing so, [being involved in political activities] the claimant would be subject to the kind of systematic and discriminatory conduct required to satisfy the requirements of the Refugees Convention.
The applicant submitted that given the “width and extent of the material findings … made by the Reviewer”, it could be inferred that any involvement in Bangladeshi politics could result in serious harm. The applicant also submitted that a necessary inference from the Reviewer’s findings was that there was a real chance that he would be persecuted if he returned to Bangladesh and was involved in politics.
The applicant submitted that although in para.28 of his reasons the Reviewer rejected his evidence that he had been “prominent” in either the Jatiya Party or the Freedom Party, the Reviewer nevertheless found that he had been involved in politics in Bangladesh, even if only to a limited degree. The applicant said that notwithstanding this finding of political involvement, the Reviewer made no further findings in relation to his generalised claim to fear persecution in Bangladesh:
a)because of his involvement in Bangladeshi politics; and
b)because of his membership of the Jatiya Party and the Freedom Party and/or his political opinions as a supporter of those parties.
The applicant submitted that the Reviewer confined his reasons to observations concerning his level of prominence in the party and the expectations or otherwise of those who involved themselves in politics in Bangladesh, and as a result failed to consider all the integers of the claims he had made. Specifically, he submitted that when the Reviewer considered the generalised risk of persecution in Bangladesh arising out of political activity, he failed to consider the risk he faced because he was a member or supporter of a banned party.
The applicant submitted that he claimed to be at risk of serious harm as a result of his involvement in Bangladeshi politics but that the Reviewer failed to address this claim, instead finding that those involved in Bangladeshi politics are “from time to time attacked and killed”. He submitted that his claim was substantiated by the material findings made by the Reviewer and the risk he faced did not abate because of the expectations of those involving themselves in Bangladeshi politics or because of the popularity of the decision to become involved in Bangladeshi politics. The applicant submitted that a real chance of persecution existed notwithstanding the expectations of those participating in political activities that they would not be persecuted. He submitted that a plain reading of the Reviewer’s findings led to the inference that his claim would have been made out had the correct test been applied to all its integers.
Consideration
An important foundation of the applicant’s submissions was that at para.28 of his reasons the Reviewer found that even if the applicant had not been prominent in the Jatiya Party or the Freedom Party he had, nevertheless, at least engaged in “very limited” political activity. However, a fair reading of the relevant portion of the Reviewer’s reasons does not bear out this interpretation.
Paragraph 28 is quoted above at [18]. The first sentence of that paragraph expresses an unqualified conclusion that the applicant’s claims lacked any credibility. That conclusion was supported by reference to aspects of the applicant’s answers at interview which the Reviewer found to be far from convincing. Amongst those answers were those relating to the applicant’s political activity which, the Reviewer concluded, not only contained no convincing indication that the applicant had been at any time prominent in the Jatiya Party or the Freedom Party but themselves asserted only limited activity. The Reviewer continued in the four succeeding paragraphs to provide additional reasons for his conclusion that the applicant’s account of his last ten or eleven years in Bangladesh lacked any credibility.
As a result of the Reviewer’s rejection of the applicant’s account of that period in his life, the necessary implication from the Reviewer’s reasons is that the applicant had no well-founded reason, on the basis of his history, to fear politically-based persecution in Bangladesh were he to return. In passing it should further be observed that, notwithstanding the applicant’s submissions to the contrary, he had not claimed at the RSA stage or before the Reviewer to fear harm because his political views or affiliations were related to parties which had been banned or outlawed and that it was the fact of those parties being outlawed which would be the reason for him to be targeted.
Consequently, the fact that the Reviewer had no regard to the applicant’s claims to previous political involvement when considering the general risks of political involvement in Bangladesh simply reflected the fact that the Reviewer did not accept that the applicant had had such involvement in the past. The Reviewer’s consideration of the risks posed by political involvement in Bangladesh, which led to his conclusion that, while presenting risks, such involvement did not justify a well-founded fear of persecution on political grounds, was addressed to the applicant’s stated desire to be free to express his political opinion were he to return to Bangladesh. As the Reviewer concluded that the applicant had no reason to fear persecution by reason of his life in Bangladesh before his departure, it was appropriate that it consider his claim to fear harm by reference to the situation generally in Bangladesh and not by reference to claims which had not been accepted.
Finally, it is correct, as the applicant submitted, that the Reviewer did not expressly refer to the “real chance” test found in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. However, contrary to the applicant’s submissions, that fact does not demonstrate that the Reviewer erred. As was said in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559:
Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term “well-founded fear” is to invite error. (at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)
In this regard, the Reviewer accurately quoted Art.1A(2) of the Convention at para.6 of his reasons and stated at para.8 of his reasons that the question he had to address was to be understood by reference to s.36(2) of the Act as well as “by reference to other relevant provisions of the Act, including ss.36(3)-(7), 91R-91U, and the decided court cases that bear upon those provisions”. In the circumstances, and also having regard to the manner in which the Reviewer expressed his conclusions, I do not conclude that the Reviewer misunderstood how the Convention tests were to be applied. I find this allegation is not made out.
Conclusion
The applicant has not demonstrated that the Reviewer’s review was procedurally unfair or not conducted by reference to the correct legal principles correctly applied.
Consequently, the application will be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 31 May 2012
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