SZTLD v Minister for Immigration and Border Protection

[2014] FCA 1273

FEDERAL COURT OF AUSTRALIA

SZTLD v Minister for Immigration and Border Protection [2014] FCA 1273

Citation:	SZTLD v Minister for Immigration and Border Protection [2014] FCA 1273
Appeal from:	SZTLD & Ors v Minister for Immigration and Border Protection & Anor [2014] FCCA 1430
Parties:	SZTLD, SZTLE, SZTLF and SZTLG v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 717 of 2014
Judge(s):	YATES J
Date of judgment:	28 November 2014
Catchwords:	MIGRATION - application for protection visa - whether error demonstrated in judgment of Federal Circuit Court dismissing application for judicial review
Cases cited:	Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Date of hearing:	6 November 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	33
The First Appellant:	In person
The Second, Third and Fourth Appellants:	Did not appear
Counsel for the Respondents:	Mr T Reilly
Solicitor for the Respondents:	DLA Piper

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 717 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTLD
First Appellant

SZTLE
Second Appellant

SZTLF
Third Appellant

SZTLG
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	YATES J
DATE OF ORDER:	28 NOVEMBER 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants 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 717 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTLD
First Appellant

SZTLE
Second Appellant

SZTLF
Third Appellant

SZTLG
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	YATES J
DATE:	28 NOVEMBER 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) which dismissed the appellants’ application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal).  The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to refuse to grant Protection (Class XA) visas to the appellants.

   Background

2. The appellants claim to be citizens of Bangladesh.  Their applications for the visas were based on the first appellant’s claim to fear persecution on the ground of his political opinion if he returned to Bangladesh.  The first appellant arrived in Australia on 16 September 2004. The second appellant, who is the first appellant’s wife, arrived in Australia on 26 September 2004.  The third and fourth appellants are the first and second appellants’ sons, who were born in Australia.  The second, third and fourth appellants’ applications for protection visas were based on the first appellant’s claim, and were made as members of a family unit. 

3. The first appellant arrived in Australia on a student visa.  He subsequently made an unsuccessful application for a permanent skilled visa.  The Tribunal found that over a period of some seven years in Australia, the first appellant did not claim that he feared persecution in Bangladesh until he made his claim for a protection visa on 11 October 2011, after he had “exhausted all other visa pathways”.  This was despite the assistance provided to the first appellant by a number of migration advisers over that time.

   The Tribunal’s decision

4. The first appellant’s claim to fear persecution in Bangladesh was because of his political opinion and, in particular, was based on his support of the Bangladesh National Party (the BNP).  It is not necessary for me to refer in detail to the information which the first appellant placed before the Tribunal in that regard.  It is sufficient for me to record the following findings made by the Tribunal at [32]-[34] in its decision record:

   32.The tribunal accepts that the applicant is a national of Bangladesh.  It accepts that he supported the BNP in Bangladesh.  It accepts that his father is a well-known and respected elder.  It is prepared to accept that as long ago as the 1970’s the applicant’s father had entertained hopes of being nominated as a candidate for the Awami League and this was instead given to the son of a prominent political figure.  The tribunal is prepared to accept that as a result if [sic] this, political loyalties became strained and remain so.  Having accepted that the applicant supported the BNP in Bangladesh the tribunal does not accept that he occupied a prominent role.  It does not accept that he was a high profile member of the BNP in Bangladesh.  Importantly the tribunal does not accept that the applicant occupied a significant role for the BNP during the period from 2001 until 2004 when the BNP was in power.  According to the applicant’s evidence over this period he was not very active; they were enjoying power; he was doing business and he organised meetings for the Thana.  There is no persuasive evidence before the tribunal which indicates that the applicant has remained politically active for the BNP in the nine years that he has been in Australia.  The tribunal does not accept that he suffered serious harm in Bangladesh for reason of his political opinion nor does it accept that serious threats were made against him by his political adversaries in the past for this reason.

   33.The tribunal has formed the view that whilst the applicant’s evidence was, in the main truthful insofar as he supported the BNP he has now sought to embellish his claims and has overstated the nature of his past political activity as a member of the BNP in order to enhance his claims to fear persecution in Bangladesh.

   34.The applicant’s evidence about the politics of Bangladesh and in particular of his area of Shibchar satisfies the tribunal that the applicant supported the BNP.  He was able to identify the candidates in the Madaripur constituencies.  He described the political fortunes of a particular Awami League candidate  and current MP Mr Nur Alam Chowdhury Litton.  On the basis of his oral evidence given at the hearing the tribunal is prepared to accept that he was an active member of the student wing of the party when he was a student in the 1990’s.  It accepts that he continued his support for the BNP after that time.  However it does not accept that he was a high profile member of the BNP prior to leaving the country to study abroad in 2004.  It does not find credible the applicant’s claim made during the Departmental interview that Mr Nur Alam Chowdhury MP seeks to prevent the applicant from returning to Bangladesh.  In addition to this the applicant has been absent from Bangladesh for some nine years and in the tribunal’s view any low level interest in his political activities or indeed any interest in him because of his father’s profile would be diminished.

5. Later, the Tribunal concluded (at [36]):

   36.For the reasons which follow the tribunal does not accept that the applicant suffered serious harm amounting to persecution for the purposes of s91R in the past in Bangladesh for reason of his political opinion nor does it accept that there is a real chance that he will suffer such harm if he returns there in the reasonably foreseeable future.  According to his evidence which is supported by independent country information, at the time the applicant left Bangladesh in 2004 the BNP was in power, having been re-elected in 2001. The tribunal accepts that notwithstanding this victory, in the applicant’s electorate an AL candidate was successful.  Nevertheless over this period, that is from 2001 until 2004 the applicant, whilst he claims that he was not safe in his area, on his own evidence he continued to be actively involved in the family business there and he continued to live in the family home at Shibchar. Late in the hearing the applicant said that before he left Bangladesh in 2004 he went to live in Dhaka for a time and he spent four months living at his uncle’s house because he was being sought at his own home.  He also claimed that the police and the local Member of Parliament were trying to find him.  The tribunal does not accept this claim to be credible and it does not accept that he moved from the family home for his safety.  It finds that had the applicant been of interest to the police or his political adversaries as he now claims he could have been located at any time Madaripur or in Dhaka.  Indeed had the applicant been sought by the police as he now seeks to claim he would not have been able to depart the country.

6. The Tribunal also considered an allegation by the first appellant that a “false [court] case” had been “raised against him in Bangladesh”.  The Tribunal rejected this allegation, finding it to be “vague and inconsistent”. The Tribunal found one aspect of it to be “implausible”.  In the absence of independent evidence, the Tribunal did not accept that allegation to be truthful.

7. As to the first appellant’s likely position should he return to Bangladesh, the Tribunal found (at [38]):

   38.At the Departmental interview the applicant told the delegate that he would return to Bangladesh but the current serving Awami League Member of Parliament, Mr Nur Alam Chowdhury, against whom he had campaigned would not allow him to return.  At the hearing the tribunal questioned the applicant about this claim.  The applicant claimed that Mr Chowdury made a visit to Australia and whilst he was here the applicant tried to call him.  The applicant said that he wanted to negotiate his safe return to Bangladesh with Mr Chowdhury.  The tribunal eventually established that the applicant did not speak to Mr Chowdhury during his visit.  He said that he was informed that Mr Chowdhury was quite busy and did not wish to speak to the applicant.  Given the applicant’s inconsistent evidence the tribunal is not persuaded and does not accept that Mr Chowdhury who is a current and long-standing Member of Parliament has an adverse interest in the applicant.  It does not accept that Mr Chowdhury seeks to prevent the applicant’s return to Bangladesh and it does not accept that Mr Chowdhury has a desire or intention to harm the applicant because the  applicant holds a different political view or because the applicant campaigned against Mr Chowdhury in the past.

8. The Tribunal concluded (at [39]):

   39.On the basis of the evidence before it and for all of the reasons outlined the tribunal does not accept that there is a real chance that the applicant will be targeted for serious harm which amounts to persecution for reason of his support for the BNP and BNP candidates in his constituency.  Specifically the tribunal rejects the applicant’s claim that the incumbent Member of Parliament and the member for Madaripur 1, Mr Nur Alam Chowdhury has made serious threats against the applicant in the past and now seeks to prevent the applicant’s return to Bangladesh.  Furthermore it does not accept that he is of interest to his father’s former political adversaries because of his relationship with his father.  The tribunal finds that the applicant’s fear of persecution in Bangladesh for a Convention reason is not well-founded.

   The Federal Circuit Court’s judgment

9. The jurisdictional error identified in the appellants’ amended application filed in the Federal Circuit Court on 26 March 2014 was that the Tribunal was required to consider, but did not consider:

   ·whether, if the first appellant were to return to Bangladesh, he would resume his involvement with, or become actively involved with, the BNP; and

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

10. The primary judge found that the first appellant had made no claim before the Tribunal that, if he were to return to Bangladesh, he would become actively involved with the BNP.  Indeed, the primary judge found that the first appellant made no claim before the Tribunal that any involvement he might have with the BNP, if he were to return to Bangladesh, would be different in quality or intensity from the involvement he claimed to have had before he left that country.

11. In this connection, the primary judge noted the Tribunal’s findings at [32] in its decision record, which I have quoted at [4] above. These findings included:

    ·On the first appellant’s own evidence, he had not been very active with the BNP in the period 2001 until 2004.

    ·There was no persuasive evidence before the Tribunal which indicated that the first appellant had remained politically active for the BNP in the nine years he had been in Australia.

12. The primary judge rejected the implicit premise of the appellants’ argument – that, prior to his departure to Australia, the first appellant was politically active in the BNP.  The primary judge held (at [12]):

    12.… 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.

13. The primary judge also held (at [14]-[15]):

    14.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. 

    15.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.  

14. Further, the primary judge addressed a submission by the appellants that, although the Tribunal had not been persuaded that the first appellant had been politically active for the BNP in Australia, it had not found that he had not been so active.  The appellants submitted that this was, therefore, a possibility which had to be taken into account when the Tribunal considered the appellants’ claim as a whole.

15. In that connection, the primary judge recorded (at [18]) the following submission advanced by the appellants:

    18.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).

16. The primary judge did not accept that the principle in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 had relevant application in the present case. His Honour found that the Tribunal was in no real doubt about the first appellant’s lack of political activity for the BNP in Australia. It followed that the Tribunal was under no obligation to consider the possibility to which the appellants had referred.

17. The primary judge concluded that the appellants had not demonstrated that the Tribunal’s decision was affected by jurisdictional error, with the consequence that the appellants’ application was dismissed with costs.

    The appeal in this Court

18. The grounds of appeal, as set out in the appellants’ notice of appeal filed on 17 July 2014, are:

    1.The Trial Court made an error not considering that the Refugee Review Tribunal was constructively failure in exercising its jurisdiction in taking into account the totality of the claim.

    2.The Federal Circuit Court made an error not considering integer of the claim particularly false were filed against the First applicant, without any evidentiary proof the Tribunal denied its existence illogically.

19. Although expressed awkwardly, I understand the first ground of appeal to be that the primary judge erred in not finding that the Tribunal failed to consider all the first appellant’s claims.  I understand the second ground of appeal to be that the primary judge erred in failing to consider the correctness of the Tribunal’s rejection of the claim that a “false case” had been “raised” against the first appellant in Bangladesh:  see [6] above.

20. These grounds do not appear to engage the case for judicial review that the appellants brought in the Federal Circuit Court, unless the first ground is taken to be conterminous in scope with the sole ground of review in the appellants’ amended application filed in the Federal Circuit Court:  see [9] above.  Certainly, the second ground of appeal does not relate to the ground of review advanced in the Federal Circuit Court.

21. Although legally represented in the proceeding before the Federal Circuit Court, the first appellant appeared at the hearing of the present appeal unrepresented.  He was assisted by an interpreter, although he was able to freely converse with me.  He understood the questions I asked of him.  His answers, given in English, were responsive and intelligible. 

22. At the commencement of the hearing, I asked the first appellant to elaborate on the grounds of appeal.  As to the first ground, the first appellant made clear that the alleged error of the Federal Circuit Court was that it wrongly rejected the ground of review that had been raised in the appellants’ amended application filed in that court.  As to the second ground, the first appellant said that the Tribunal incorrectly rejected his claim that a “false case” had been made against him and that the Federal Circuit Court erred in not finding that to be the case.  I informed the first appellant that this ground had not been advanced as a ground of review before the Federal Circuit Court and that it could only be raised on this appeal with leave of the Court.  The Minister objected to leave being granted, on the basis that the ground had no prospects of success.

    Consideration

23. In my view, the primary judge did not err in concluding that jurisdictional error on the part of the Tribunal had not been demonstrated.

24. It is clear from reading the Tribunal’s decision record that the first appellant’s claim to fear persecution because of his political opinion was firmly based on his alleged past experiences in Bangladesh.  As I have noted, the Tribunal found that in the period 2001 to 2004, the first appellant “was not very active” politically in Bangladesh.  Further, the Tribunal found that there was no persuasive evidence to indicate that the first appellant remained politically active for the BNP in the nine years he had been in Australia.  In my view, the latter finding can only be sensibly understood as an expression by the Tribunal of a conclusion, based on the material before it, that it was not satisfied that the first appellant remained politically active for the BNP while he had been in Australia.

1. It is clear from reading the Tribunal’s decision record – the accuracy of which the appellants did not contest before the Federal Circuit Court – that no “substantial, clearly articulated argument relying upon established facts” was advanced by the appellants that, if the first appellant were to return to Bangladesh, he would become actively involved with the BNP:  Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55].

2. The highest the first appellant could put the matter before the Tribunal was that, if he returned to his home area in Bangladesh, he would be held in high esteem and that villagers would seek his opinions. His evidence to the Tribunal was to the effect that “they call him on matters related to the BNP from Bangladesh”.  The Tribunal referred to the first appellant’s evidence on this matter in its decision record at [27], saying:

   27.… The tribunal asked about the matters on which the BNP contacts him.  He added that a leading local BNP figure sent five cows to his family upon the death of the applicant’s mother.  The applicant acknowledged that he is not now on the local committee but he follows the party.

3. The primary judge referred to this evidence, finding as follows at [17]:

   17.… 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. 

4. I respectfully agree with those observations.  I would add that there is no reason to think that the first appellant’s evidence in that regard was not taken into account by the Tribunal when expressing its lack of satisfaction that the first appellant remained politically active for the BNP while in Australia.

5. In my respectful view, the primary judge was correct to conclude that the ground of review advanced before the Federal Circuit Court concerned a specific claim that had not been advanced before the Tribunal and that, consequently, the Tribunal’s failure to consider that particular claim did not constitute jurisdictional error on its part.

6. As I have noted, the second ground of appeal is a matter that was not raised as a ground of review before the Federal Circuit Court.  The appellants need leave to raise that ground now.  I am not prepared to grant that leave because, in my view, there is no reasonable possibility that the ground can be sustained. 

7. The Tribunal clearly considered the first appellant’s claim that a “false case” had been made against him in Bangladesh.  As I have noted, the Tribunal found that the first appellant’s evidence on that matter was vague and inconsistent, and that one part of the claim was implausible. The Tribunal concluded that the claim was not truthful and rejected it. 

8. It was for the Tribunal to determine the facts of the matter.  The Court does not have jurisdiction to review the merits of that claim or to interfere with the Tribunal’s findings of fact in relation to it.  There is nothing to suggest that the Tribunal did not conscientiously consider the claim.  There is nothing to indicate that its conclusion was not open on the evidence as the Tribunal found it to be.

   Disposition

9. The appellants have not demonstrated appealable error in the judgment of the Federal Circuit Court.  The appeal will be dismissed with costs.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Associate:

Dated:        28 November 2014