SZTLD v Minister for Immigration

[2014] FCCA 1430

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTLD & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1430

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to take relevant considerations into account, failed to consider all the applicants’ claims and failed to consider that it might have been wrong.

Legislation:

Migration Act 1958, ss.36, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220

First Applicant: SZTLD

Second Applicant: SZTLE

Third Applicant: SZTLF

Fourth Applicant: SZTLG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2619 of 2013

Judgment of: Judge Cameron

Hearing date: 27 June 2014

Date of Last Submission: 27 June 2014

Delivered at: Sydney

Delivered on: 27 June 2014

REPRESENTATION

Counsel for the Applicants: Mr B. Zipser

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2619 of 2013

SZTLD

First Applicant

SZTLE

Second Applicant

SZTLF

Third Applicant

SZTLG

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant is a citizen of Bangladesh who arrived in Australia on 16 September 2004 as the holder of student visa.  On 11 October 2011 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Bangladesh because of his political opinion.  The first applicant’s wife, who is the second applicant, arrived in Australia on 26 September 2004 and his two sons, the third and fourth applicants, were born in Australia.  They are also citizens of Bangladesh and were included in the first applicant’s application as members of his family unit.  On 19 June 2012 the applicants’ applications were refused by a delegate of the first respondent (“Minister”).  The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicants’ claims for protection visas were set out on pages 3-6 of the Tribunal’s decision.

2. The first applicant made the following claims in a statement accompanying his protection visa application:

   a)his family was involved in politics and as a student in Bangladesh he had been involved in politics.  He joined the Jatiyabadi Chatra Dal, the student wing of the Bangladesh National Party (“BNP”) and became the joint secretary of his college committee in 1992 and the vice president in 1994;

   b)during the 1996 Bangladeshi parliamentary elections he campaigned door-to-door for a BNP candidate and made speeches in public.  The BNP candidate was defeated by an Awami League candidate;

   c)the Awami League won the 1996 elections and after forming the government they became vengeful towards the BNP leaders and activists.  His family’s home was ransacked and looted by members of the Awami League, his parents were insulted and he was told that he would be in trouble if he continued his involvement with the BNP;

   d)he continued with his activities with the BNP and in 1999 became one of the joint secretaries of his home sub-district committee;

   e)during the 2001 Bangladeshi parliamentary elections the BNP won a two-thirds majority but the BNP candidate he supported was defeated by the same Awami League candidate from the 1996 elections;

   f)after the election he became involved in development work and in 2002 became an executive member of the BNP in his home district;

   g)after he left Bangladesh the Awami League was elected to government with a two-thirds majority.  After forming government the Awami League wanted to destroy the BNP; and

   h)he feared he would be persecuted if he returned to Bangladesh.

3. The first applicant attended a Tribunal hearing on 30 July 2013 and made the following claims:

   a)before he was born, his father was a president in the Awami League and had been nominated to stand as a candidate in his local constituency.  However, his nomination was given to the father of the current Awami League Member of Parliament (“MP”) in his home area.  His father decided to stand as an independent candidate in the 1974 elections.  As a result he was threatened and a grenade was thrown at his family home.  His father left politics after his mother insisted that he do so;

   b)he joined the BNP in 1996 and had been involved in its youth wing prior to that.  In 2000 he became the secretary of his home sub-district committee of the BNP;

   c)in 2001 or 2002 the BNP leader’s convoy was attacked by Awami League members and supporters whilst travelling though the first applicant’s sub-district.  In support of their leader, the BNP members filed a case against the Awami League members and in turn Awami League members also filed a case against BNP members;

   d)after the 2001 elections some BNP members attacked the local Awami League MP and while he escaped unharmed, his car was damaged.  The first applicant was not present but was named, along with others, in a case that was subsequently lodged against the BNP;

   e)he attended court in relation to the case against him on two occasions but had not attended again after learning from local people of a planned attack on him.  The case was lodged under his nickname and his real name had not become known during the court proceedings so he was able to leave Bangladesh;

   f)between 2001 and 2004 the BNP was in power and he ran his business and organised meetings for his district committee.  In 2002 the local Awami League MP had said he would kill him if he found him and he had been chased a few times.  He had stayed in Bangladesh until 2004 because he had thought he could overcome the situation but things became worse;

   g)he was told by the secretary of the Jubo Dal that he had been named in another case lodged in 2010 or 2011 after he had left Bangladesh.  Those who were in Bangladesh attended court and had their cases dismissed but he “got bailed”.  He had unsuccessfully tried to obtain documentation about the case from the local authorities;

   h)there were ill feelings between him and the local Awami League MP in his home area because the MP’s father had been the one who had been given his father’s nomination in the 1970’s.  The MP also thought that he (the first applicant) had the following to stand against him because he had been popular in his home area and was the son of a popular leader;

   i)even though he had not been in Bangladesh for some years, his father undertook charity work and his family name was still powerful so if he returned to his home area, as his father’s son, he would be held in high esteem.  People still telephoned him from Bangladesh to discuss matters relating to the BNP;

   j)the local Awami League MP would not allow him to return to Bangladesh.  The MP had visited Australia and he (the first applicant) had tried to contact him to negotiate his safe return to Bangladesh.  He was told that the MP was busy and did not wish to speak to him;

   k)before he left Bangladesh in 2004 he went to live in Dhaka and lived with his uncle for four months because he was being sought at his home.  The police and local Awami League MP had also been trying to find him; and

   l)he had not applied for a protection visa earlier because when he arrived in Australia he had discussed his options with his migration agent who told him to pursue his studies as a first option rather than seek protection. After his studies, he made an application for a skilled visa and had been confident he would be successful but he was refused that visa because his agent had provided false documentation in relation to his work experience and history in Australia.  He then sought and obtained advice in relation to the options available to him.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants were persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act.

2. The Tribunal accepted that the first applicant’s father was a well-known and respected elder.  It was prepared to accept that in the 1970s the first applicant’s father had had hopes of being nominated as a candidate for the Awami League but the nomination was instead given to the son [sic: father?] of a prominent political figure which led to political loyalties becoming and remaining strained.  However, for the following reasons the Tribunal did not accept that there was a real chance that the first applicant would be persecuted because of his political opinion if he returned to Bangladesh:

   a)whilst accepting that the first applicant had been an active member of the BNP’s youth wing when he was student and that he supported the BNP, the Tribunal did not accept that he had been a high profile member of the party or that he had occupied a significant role in the BNP, particularly from 2001 to 2004 when the BNP was in power.  The Tribunal noted that the first applicant’s evidence was that between 2001 and 2004 he had not been very active apart from organising meetings for the district committee.  The Tribunal found that whilst the first applicant’s evidence about his support for the BNP was mainly truthful, he had sought to embellish his claims and had overstated the nature of his past political activity as a BNP member in order to enhance his claims to fear persecution in Bangladesh;

   b)the Tribunal found that there was no persuasive evidence which indicated that the first applicant had remained active with the BNP since he had arrived in Australia;

   c)the Tribunal noted that the first applicant’s evidence, which was supported by country information, was that at the time he left Bangladesh in 2004 the BNP had been in power, having been re-elected in 2001, but that in the first applicant’s electorate the Awami League candidate had been successful.  However, it also noted that although the first applicant claimed that he was not safe in his home area during that time, he had continued to be actively involved in his family business and had continued to live at his family home.  The Tribunal did not accept as credible the first applicant’s claims that before he left Bangladesh he had gone to live in Dhaka for some time and with his uncle for four months because he was being sought at his home and that the police and local MP had also been trying to find him.  It found that if the first applicant had been of interest to the police or his political adversaries then they would have located him in his home area or in Dhaka and if he had been of interest to the police he would not have been able to depart the country;

   d)the Tribunal did not accept that a false case had been filed against the first applicant in his own name or in another name.  In that connection, it noted that the first applicant had not provided any corroborative evidence concerning the false case.  The Tribunal found implausible his claim that the case had been filed in his nickname and found his evidence about the case and his claimed court appearances to be vague and inconsistent.  In the absence of independent evidence, the Tribunal concluded that that claim was untrue; and

   e)the Tribunal was not satisfied that the local Awami League MP in the first applicant’s home area had an adverse interest in him and did not accept that the MP had a desire or intention to harm him because he had a different political view.  It did not accept that the MP had been seeking to kill the first applicant or had made threats to do so.  The Tribunal also did not find credible the first applicant’s claim that the local Awami League MP sought to prevent him from returning to Bangladesh, noting that the first applicant had been absent from Bangladesh for some years and that any low level interest in his political activities or any interest in him because of his father’s profile would have been diminished.

Proceedings in this Court

1. In their amended application the applicants alleged:

   1.The Tribunal accepted that the first applicant was actively involved with the BNP prior to departing Bangladesh in 2004 (paragraphs 32, 33 and 34 of decision) and that political loyalties are strained between the families of the first applicant and the current Awami League local member of Parliament [Mr X] (paragraphs 28 and 32 of decision).  The Tribunal did not make any finding that the first applicant would not resume his involvement with the BNP if he is required to return to Bangladesh.  The Tribunal also did not reject the first applicant’s general claim about violence by Awami League leaders and activists against BNP members (paragraph 16 of the decision).  In the circumstances, the Tribunal was required to (but did not) consider:

   a)whether, if the first applicant returns to Bangladesh, he would resume his involvement with, or become actively involved with, the BNP; and

   b)if so, whether there is a real chance that he would suffer persecution.

   This is jurisdictional error.

2. The issues raised by the amended application were whether the Tribunal was required to but did not consider:

   a)whether the first applicant would:

   i)resume his involvement with the BNP; or

   ii)become actively involved with the BNP if he returned to Bangladesh; and

   b)if he would, whether he faced a real chance of persecution.

Would the first applicant resume his involvement with the BNP?

1. The first applicant made no claim that any involvement he might have with the BNP were he to return to Bangladesh would be different in quality or intensity from the involvement he claimed to have had before he left that country.  Consequently, it is important to keep in mind that although the Tribunal accepted that the first applicant had been a BNP activist in his student days, it did not accept that he was much more than a supporter in subsequent years.  As it noted in para.32 of its reasons, the first applicant’s own evidence was that he had not been very active from 2001 to 2004, when he came to Australia.  It also noted that no persuasive evidence indicated that the first applicant had been politically active for the BNP since he had been in Australia.

2. Consequently, what the applicants described in the amended application as the first applicant’s active involvement with the BNP prior to his departure for Australia was really nothing of the sort.  It was because the first applicant had not, on the Tribunal’s assessment of the evidence, been much involved with the BNP in the years before he left Bangladesh that it concluded that he was unlikely to be at risk of persecution for political reasons were he to return.

Would the first applicant become actively involved with the BNP?

1. The second element of the applicants’ allegation concerned the alleged possibility that the first applicant would become actively involved in the BNP if he went back to Bangladesh.

2. The Tribunal was required to consider any claims which were clearly articulated by the applicants or which, even if not clearly articulated, nevertheless arose sufficiently clearly on the materials that the Tribunal appreciated or could have appreciated their existence without independent analytical inquiry.

3. The first applicant never articulated to the Tribunal a claim that if he returned to Bangladesh his involvement with the BNP would be greater than it had been in the period before he left, and no unarticulated claim to that effect can be discerned in the Tribunal’s summary of the evidence and arguments presented to it.  In this connection, it might be noted that no challenge was made to the accuracy of that summary.

Rajalingam considerations

1. The applicants also submitted that although the Tribunal had not been persuaded that the first applicant had been politically active in Australia, it had not found that he had not been.  They submitted that this was therefore a possibility which had to be taken into account when the Tribunal considered their claims as a whole. 

2. This submission sought to focus on the way the Tribunal expressed its assessment of the relevant evidence rather than on the evidence itself, which was what the Tribunal had to consider.  The relevant evidence was that while in Australia the first applicant received telephone calls from Bangladesh seeking his advice.  If that was the extent of the first applicant’s political involvement over nine years, it is unsurprising that the Tribunal did not consider it very significant, impressive or suggestive of a level of political engagement which might put the first applicant at risk of persecution in Bangladesh, which I infer is the unstated conclusion which it reached on that issue.

3. The applicants further submitted in this connection:

   When “the RRT is uncertain as to whether an alleged event occurred … it may be necessary to take into account the possibility that the event took place in considering the ultimate question” of whether an applicant has a well-founded fear of persecution if required to return to their country:  Minister v Rajalingam (1999) 93 FCR 220 at [62] per Sackville J (North J agreeing).

4. For the reasons already given, I have concluded that the Tribunal did reach an implicit conclusion that the political activity in Australia of which the first applicant gave evidence would not present a risk of harm to him in Bangladesh.  That being so, the passage from Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 quoted by the applicants has no relevance. But in any event, although a decision-maker who is uncertain of a matter of fact and makes a finding on the question should entertain the possibility that his or his conclusion might be wrong, this is not necessary if the decision-maker is in no real doubt on the question. In this case, the Tribunal was in no real doubt and so was under no obligation to question itself in the manner advocated by the applicants.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  7 July 2014