NBJA v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2006-09-19|Before: Edmonds J

Introduction 1 This is an appeal from the Federal Magistrates Court (Emmett FM) delivered on 6 December 2005, dismissing an application for review of a decision of the second respondent ('the Tribunal') made on 12 August 2004 affirming a decision of a delegate of the first respondent ('the Minister') to refuse the appellant a protection (Class XA) visa.

Background 2 The appellant, a citizen of Bangladesh, sought a protection visa on the ground that he had a well founded fear of persecution, on political grounds by the Bangladesh Nationalist Party ('BNP') and Jamaat-e-Islami ('JI') by reason of his membership of the Awami League, and on religious grounds. 3 A chronology of relevant events is set out below: 7 Oct 2003 The appellant entered Australia. 30 Oct 2003 The appellant lodged an application for a protection (Class XA) visa. 1 Apr 2004 The application for a protection visa was refused by the Minister's delegate. 27 Apr 2004 The application for review by the Tribunal was lodged. 12 Aug 2004 The Tribunal affirmed the refusal decision. 2 Sept 2004 The Tribunal handed down its decision. 20 Sept 2004 The appellant lodged an application for review in the Federal Court. 21 Oct 2004 The proceedings were remitted to the Federal Magistrates Court. 28 Jan 2005 The appellant lodged an amended application for review in the Federal Magistrates Court. 22 Nov 2005 On the hearing of the appellant's amended application, the appellant sought leave to file a further amended application for review. 6 Dec 2005 Leave was refused and the appellant's amended application was dismissed by Emmett FM. 19 Dec 2005 The appellant lodged his notice of appeal. 4 As the chronology suggests, the appellant sought leave to file a further amended application before her Honour on 22 November 2005. Of the six grounds raised in the further amended application and considered by Emmett FM, only two, Ground 4 particular (a) and Ground 5 particular (b), are grounds raised in the notice of appeal. Ground 4 particular (a), a claim of non-compliance with s 424A (1) of the Migration Act 1958 (Cth) ('the Act'), is repeated in Ground 3 of the notice of appeal. Ground 5 particular (b), a claim of failure to consider whether the appellant was a member of a particular social group, is repeated in Ground 1 particular (b) of the notice of appeal.

Grounds of Appeal 5 The grounds set out in the notice of appeal are: '1. Her Honour erred in failing to hold that the [Tribunal] had fallen into jurisdictional error, failed to exercise its jurisdiction, or asked the wrong question, in that: a. The Tribunal based its decision and reasoning process on the Appellant's claims for status as refugee [sic] upon the distinct and discrete claims of fear of persecution by reason of apostasy and fear of persecution by reason of political opinion instead of on the correct cumulative ground of fear of persecution by reason of being a Christian convert who is an Awami League member and an executive in a multinational corporation; b. The Tribunal committed an error of law and did not review the delegate's decision by failing to make findings in relation to the particular social group to which the appellant belonged to [sic] when affirming the delegate's decision that the Appellant is not a person to whom Australia has protection obligations; c. The Tribunal identified the wrong issue and therefore did not ask the correct question in concluding that "the [appellant] is of no interest to the Bangladeshi authorities" and that "there was no clear evidence of government persecution [against members of the religious minority]" in finding that the appellant's fear of persecution is now well-founded; d. It was not open to the Tribunal to find that there is no a real chance the Appellant would be subjected to serious harm upon refoulement in circumstances where the Tribunal reached its state of satisfaction without identifying the correct issue and/or alternatively relying on irrelevant material and unsubstantiated hypotheses in a way that affected the exercise of its review power; and e. The Tribunal misstated a critical aspect of the Appellant's evidence so that it misdirected itself on assessing the prospective risk to the Appellant of persecution upon refoulement and, in the process, failed to comply with the requirements of sections 36(2) and 420(2)(b) of the Migration Act . 2. Her Honour erred in failing to find the Appellant was denied procedural fairness where the Tribunal failed to make a finding on a substantial, clearly articulated argument relying on established facts and therefore failed to carry out the review required by the Migration Act in that: a. The Tribunal did not deal with the case raised by the evidence before it, instead limiting its determination to the case as articulated by the appellant (that he feared persecution by reason of apostasy and political opinion) without taking into account the appellant's high profile as an executive of a multinational corporation. 3. Her Honour erred in failing to find that the Appellant was denied natural justice and procedural fairness where the Tribunal did not give the [appellant] particulars in writing of any information it considered would be the reason or part of the reason for affirming the decision under review in that: a. The Tribunal used what Pastor Carol said at the hearing as reasons, or part of the reasons, to affirm the decision under review; b. The information which the Tribunal obtained from the evidence of Pastor Carol was specifically about the appellant; and c. The Tribunal failed to ensure, as far as practicable, that the appellant understood why the particulars of the information given by Pastor Carol were relevant to the review.' 6 Paragraphs 80 - 82 of the appellant's written submissions filed on 11 April 2006 raised a new ground: that the Tribunal made a jurisdictional error by failing to ask the correct question concerning relocation. This new ground is also considered below.

Findings of Tribunal 7 The Tribunal: (i) Accepted that the appellant was a political activist and a leader of the 'Bangladesh Awami League youth wing Jubo League'. In the year 2000 he was elected to the Jubo Executive Committee and was 'organising secretary' from 2002 to 2003; (ii) observed that he made no claim to have been attacked, harassed, detained or otherwise abused because of his involvement in the Awami Jubo League, or that he gave speeches, led rallies or demonstrations or stood for public office. Nor did he claim to have any public profile outside his own branch; (iii) found that when asked about the philosophy and manifesto of the party he replied in very vague and general terms and was not able to provide anything other than the most basic answer to the question, such that the Tribunal was not satisfied that he had any real knowledge or understanding of the Awami Jubo League; (iv) was satisfied that he was not involved in the Awami Jubo League in anything other than a most basic way in his immediate local area and did not accept that he had a political profile of any sort in Dhaka or elsewhere in Bangladesh; (v) observed that while the appellant claimed to have been attacked on 6 July 2003 and had provided a copy of a medical certificate dated 21 July 2003 recording certain injuries, the certificate did not offer an 'explanation for the reasons for these injuries'. He had not provided any evidence that the injuries were occasioned during an attack on him by his political opponents and had not mentioned the attack at all in his statutory declaration; (vi) did not accept his claim that he was attacked and found that this went to the matter of his credibility; (vii) did not accept his claim that he could not relocate elsewhere in Bangladesh, and found that he was capable of supporting himself and living independently elsewhere or more generally in Dhaka or Bangladesh; (viii) found that he embellished his claim with the objective of enhancing his claims for refugee status and that this went to the matter of his credibility; (ix) did not accept his claims that Muslim fundamentalists tried to burn his brother's house in 2001, and had issued a fatwa against him; (x) was not satisfied that he was a Christian in Bangladesh or was baptised there, since he had been baptised in Australia on 28 December 2003; (xi) was not satisfied that his baptism in Australia and involvement with the church here was out of a genuine interest and concern for the Christian religion but rather was undertaken to enhance his claims for a protection visa. The Tribunal disregarded this conduct in accordance with s 91R(3)(b) of the Act; (xii) did not accept that if he had converted to Christianity his former manager and partner in his share business in Bangladesh would have had their relatives in Australia track him down and threaten him or that the relatives in Australia would have been willing to do so; (xiii) did not accept he had been threatened since he had not reported this to the police; and (xiv) found that since he had obtained a passport and had no difficulty leaving and re-entering Bangladesh, he was of no interest to the Bangladeshi authorities. 8 The Tribunal concluded that there was not a real chance that he would be subjected to serious harm amounting to persecution for a Convention reason if he returned to Bangladesh.

In the Court Below 9 Emmett FM held that none of the grounds raised in the further amended application raised an error of law and refused leave to file the further amended application. In relation to the two grounds which were raised in the notice of appeal, the court held as follows: 10 Ground 1(b): The appellant did not claim to be a member of a particular social group of executives of the Awami League, executives in a multinational company, from well-to-do Muslim families and apostates. While the Tribunal would have had a duty to consider such a claim if it was plain on the face of the material before it, the claim had not been made in the present case ([75] - [78]). 11 Ground 3: The court held that the Tribunal did not fail to give the appellant notice of the evidence of Pastor Carol pursuant to s 424A(1) of the Act. This was information excluded from the requirements of s 424A(1) because it was given to the Tribunal by the appellant for the purposes of his review application, pursuant to s 424A(3)(b) of the Act ([66] - [67]).

Ground 1: Whether jurisdictional error 12 The appellant claims in Ground 1 that the Tribunal fell into jurisdictional error, setting out five particulars which are claimed to be errors of law amounting to jurisdictional error.

Particular (a) 13 Particular (a) claims that the Tribunal considered a claim other than the claim put to it by the appellant. The appellant claims that the correct claim is a cumulative ground of fear of persecution by reason of being a Christian convert who is an Awami League member and an executive in a multinational corporation, but instead of considering this, the Tribunal based its decision upon a claim of fear of persecution by reason of apostasy and political opinion. 14 In his application for review by the Tribunal the appellant relied upon two Convention grounds: that he was a converted Christian persecuted by the ruling government and its political partner JI; and that he was 'also' persecuted because of his political opinion by Muslim terrorists. These were the grounds considered by the Tribunal. The appellant made no claim to persecution by reason of being an executive in a multinational corporation, either in his application to the Tribunal or in the statutory declaration lodged with his application for the protection visa. Nor was this claim made in combination with other grounds. 15 The Tribunal considered his claim that he was an executive in a multinational company and that he was the leading leather inspector in this company. The Tribunal accepted that he had held senior positions in several different companies, including being an executive in a multinational company and partner in a share business. However the appellant made no claim which provided any causal link between these positions and any harm that he claimed he suffered. No claim was put, capable of being considered by the Tribunal, based on this factual finding.

Particular (b) 16 The appellant claims that the Tribunal failed to make findings in relation to the particular social group to which the appellant belonged, and this is an error of law. 17 The notice of appeal does not specify what is the particular social group to which the appellant claimed to belong. If the claimed social group is of a kind referable to the complaint made in the context of Ground 1(a), namely that the appellant was an executive in a multinational corporation, from a well-to-do Muslim family and an apostate, then the appellant did not make such a claim. Emmett FM correctly held that as a matter of law the appellant did not make a claim to be a member of a particular social group. Her Honour accepted that the Tribunal has a duty to consider such a claim purely on the basis that the facts present the potential for such a case. The High Court in Applicant S v Minister for Immigration & Multicultural Affairs (2003) 217 CLR 387 implicitly accepted this in restoring the orders made by Carr J at first instance in that case. There was no necessity for the appellant to place evidence before the Tribunal that persons who were executives in multinational companies and of well-to-do Muslim families and apostates were perceived in Bangladesh as comprising a social group. However, the appellant made no claim of any kind suggesting that he suffered harm by reason of being perceived to be a member of the claimed social group. His claim was that he suffered harm as an individual and by reason of his personal political and religious opinions. The assessment of whether a person claims to be a member of a particular social group and whether he is a member of the group must be grounded in the actual evidence he or she presents to the Tribunal and the individual circumstances of the case (NABD v Minister for Immigration & Multicultural Affairs (2005) 216 ALR 1). That is the approach which the Tribunal took in the present case. There was nothing in the material before it to indicate that it was required to consider whether the appellant was a member of a particular social group. 18 In [74] of his written submissions, the appellant relies upon Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1801. In that case the Full Court held that the Tribunal must deal with the case raised by the material and evidence before it, and that an applicant does not have to pick the correct label for the Convention ground. The Full Court added: '… but the Tribunal can only deal with the claims actually made' (at [49]). The applicant in that case had made focussed submissions that he was a member of a particular social group of business people in Russia. After the Tribunal had given its decision he first claimed that he had been harmed because of his political opinion of opposing corruption or illegality. In dismissing the appeal the Full Court held that the Tribunal did not fail to consider an integer of his claim because he had never claimed prior to the Tribunal's decision that he feared persecution because of his political opinion (at [49]). The High Court subsequently granted the applicant relief in its original jurisdiction on the ground that the Tribunal erred in its actual application of the test of the Convention ground of membership of a particular social group, which requires the Tribunal properly to identify the particular social group, by reference to the applicant's submissions on that issue (Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389). It was in that context (rather than in the context of a failure to consider an integer of an applicant's case) that Gummow and Callinan JJ said that the Tribunal must not 'fail to respond to a substantial, clearly articulated argument relying upon established facts' (at [24]). Relevantly to the error considered and rejected by the Full Court as not established on the facts of the case, Kirby J said (at [74]): 'The tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This court has rejected that approach to the tribunal's duties. The function of the tribunal, as of the delegate, is to respond to the case that the applicant advances.' 19 In the same paragraph of his written submissions the appellant relied upon SGBB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 199 ALR 364, where Selway J held (at [18]) that: 'The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the Tribunal should have dealt with it.' 20 In that case the issue had been raised because the appellant 'picked up' the comments of the delegate about the issue, the delegate having dealt with it (at [19]). 21 In the next paragraph of his written submissions the appellant relies upon NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1. The Full Court approved the passage in the judgment of Selway J in SGBB, set out in [19] supra, adding (at [60]): 'This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.' 22 Applying these principles, in NABE the Full Court rejected the argument that in addition to a claim of persecution by the government of Sri Lanka, the appellant had claimed persecution by a pro-government group and a failure of state protection. The appellant's agent made no express claim of this kind before the Tribunal and it was raised only at the appellate stage. The claim did not therefore emerge clearly from the materials before the Tribunal (at [68]). 23 In the present case, the application for the protection visa and statutory declaration, the application for review by the Tribunal, and the agent's submissions contain no reference to membership of a social group. There is no material which articulates such a claim by referring to harm being suffered by reason of being identified as a person with the combined characteristics of being a political activist with the Awami League and an executive of a multinational company and an apostate. The appellant's submissions make no attempt to identify where in the applicant's case the claim was made. Nor does such a claim clearly arise from the material before the Tribunal.

Particular (c) 24 The appellant claims that the Tribunal identified the wrong issue and did not ask the correct question in concluding that the appellant was of no interest to the Bangladeshi authorities and that there was no clear evidence of government persecution against members of the religious minority. 25 It was appropriate for the Tribunal to consider whether there was country information that the present government of Bangladesh, formed by the BNP, had any interest in the appellant or tolerated persecution of members of the Christian religion. The appellant claimed he suffered harm by non-state actors, namely members of the BNP or JI and Muslim fundamentalists. It was therefore relevant for the Tribunal to consider, in accordance with Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1, whether the Bangladeshi government was willing and able to afford protection.

Particular (d) 26 The appellant claims that the Tribunal failed to identify the correct issue and/or alternatively relied on irrelevant material and unsubstantiated hypotheses in a way that affected the exercise of its review power. It is claimed further that it was not open to the Tribunal to find there was not a real chance the appellant would be subject to serious harm. 27 Further particulars have not been provided. As it stands, this aspect of Ground 1 merely repeats the other grounds in more general language. Insofar as it alleges that it was not open to the Tribunal to find that there was not a real chance the appellant would be subject to serious harm, amounting to persecution for a Convention reason, it cannot succeed. Such a conclusion was clearly open to the Tribunal on the material before it and especially having regard to its finding as to relocation.

Particular (e) 28 The appellant claims that the Tribunal mis-stated a critical aspect of the appellant's evidence and so misdirected itself in assessing the prospective risk to the appellant of persecution, and failed to comply with ss 36(2) and 420(2)(b) of the Act. 29 Since the evidence which is claimed to have been mis-stated is not identified, it is not possible to respond to this claim other than by referring to general principles which indicate that it fails to identify any error of law. An error of fact does not give rise to an error of law amounting to jurisdictional error. It was open to the Tribunal to reach those findings set out in [7] supra which went to the appellant's credibility (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, 423 per McHugh J). Reasons were given as to why the appellant was not believed on these matters. No error is apparent in these findings of the Tribunal. 30 Since s 420(2)(b) of the Actis facultative, describing the general nature of review proceedings in the Tribunal, it does not provide a basis for establishing that a decision is procedurally ultra vires (Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49], [72]).

Ground 2: Whether denial of procedural fairness 31 The appellant claims in Ground 2 that the Tribunal denied him procedural fairness by failing to make a finding on a substantial, clearly articulated argument and relying on established facts, thereby failing to carry out the review required by the Actin that it did not deal with the case raised by the evidence before it. 32 The application was lodged on 27 April 2004. Since this was a date after 4 July 2002, s 422B of the Act applies to the decision, and external notions of procedural fairness are excluded. 33 Division 4 of Part 7 of the Act was complied with and, according to s 422B that Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which the Division deals. The appellant was given a reasonable opportunity to present his case. The Tribunal carried out the review contemplated by the Act and considered the appellant's evidence with care and in detail. There was no denial of procedural fairness.

Ground 3: Whether non-compliance with s 424A(1) of the Act 34 The appellant claims in Ground 3 that the Tribunal denied him procedural fairness because it did not give him particulars in writing of information it considered would be the reason or part of the reason for affirming the decision under review. 35 In light of particulars (a) - (c) to this ground, it is a claim of non-compliance with s 424A(1) of the Act, rather than a claim of denial of procedural fairness. Such a claim should be rejected. Her Honour below correctly held that the evidence of Pastor Carrol was information excluded from the requirements of s 424A(1), because it was given to the Tribunal by the appellant for the purposes of his review application, pursuant to s 424A(3)(b) of the Act (NBJA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1759 at [66] - [67]). 36 Plainly the appellant gave the information which constituted Pastor Carol's written and oral evidence as part of his case and for the purpose of his application, within the meaning of s 424A(3)(b).

Ground 4: Relocation 37 The appellant claims in [80] - [82] of his written submissions that the Tribunal failed to ask the correct question with regard to relocation. There is also a suggestion that it was not open to the Tribunal to find that relocation was reasonable. 38 The Tribunal put to the appellant that he would be able to relocate in Bangladesh, but he responded by claiming that his political opponents would find him. The Tribunal did not accept he had a sufficient political profile for this to occur and found that this aspect of his evidence went to the matter of his credibility. The Tribunal concluded that since he was capable of supporting himself he could live independently from his family elsewhere in the same suburb or elsewhere in Dhaka or Bangladesh. 39 The question for the Tribunal was whether it was reasonable to expect the appellant to live in a new location in Bangladesh. The Tribunal did not mis-state the test set out in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437, and recently applied by the Full Court in NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37. There was probative evidence on which the Tribunal could conclude that it would not be unreasonable for the appellant to relocate, within the same suburb, region or country, given his capacity to support himself. It was certainly open to the Tribunal to find that relocation was reasonable. Moreover, the Tribunal applied the correct test in arriving at that conclusion. 40 The appellant relies upon SZBFE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1162. However, that was a very different case where there was no evidence to support the finding on relocation, and where the Tribunal held that the source of persecution was purely local when there was no evidence that it was purely local. The evidence in the present case, and the findings of the Tribunal in the present case, are quite different. 41 No error is established. Moreover, the Tribunal's conclusion with regard to relocation provides an independent basis for upholding its decision.

Relief 42 For these reasons, no error in the reasons of Emmett FM is established. No ground of review which amounts to a jurisdictional error is established and therefore there can be no jurisdictional error on the part of the Tribunal. The decision of the Tribunal is a decision which falls within the statutory description 'privative clause decision' in s 474 of the Act.

43 Accordingly, the appeal must be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

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