SVBD v Minister for Immigration & Citizenship

Federal Court of Australia|2007-03-22|Before: Collier J

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of Raphael FM of 5 October 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 10 April 2006. The Tribunal's decision affirmed the decision of a delegate of the Minister made on 25 January 2006 to refuse to grant a protection visa to the appellant. At the hearing, I noted that the Minister was not named as a respondent on the notice of appeal. I grant leave for the Minister to be joined as a respondent to this appeal.

Background 2 The appellant is a citizen of Bangladesh who arrived in Australia in late 2005 on a special purpose visa. He was a seaman on a ship, employed by a shipping company in Bangladesh, and jumped ship in Australia on 4 December 2005. The appellant applied for a protection visa on 30 December 2005. 3 In his application for a protection visa and before the Tribunal, the appellant claimed to have a well-founded fear of persecution because of his long-standing membership of the Bangladeshi Awami League Party (BAP) and his political activism. The appellant claimed that he was, inter alia, office secretary in 1992, a polling agent during elections, and librarian for a party branch. He claimed persecution by the Bangladesh Nationalist Party (BNP), and claimed that he had abandoned the ship on which he was employed due to ill-treatment by the captain. He claimed that that ill-treatment was on the instructions of an executive director of the company which owned the ship, who was a senior figure in the BNP.

Decision of the Tribunal 4 The appellant attended a hearing before the Tribunal on 28 February 2006 by videolink. The Tribunal handed down its decision on 10 April 2006. 5 The Tribunal was prepared to give the appellant the benefit of the doubt as to his membership of the BAP, and noted that the appellant had not claimed to have played a leading or prominent role in the party. The Tribunal accepted that the appellant was involved in 2001 in an election campaign. However overall, the Tribunal found his claims to be unsubstantiated, vague and, to a degree, inconsistent. The Tribunal also accepted the appellant's claim that his brother was kidnapped in Bangladesh, however the Tribunal was not satisfied that the reason for the kidnapping was for a Convention reason, as distinct from criminal extortion of a ransom. 6 The Tribunal was not satisfied the appellant had suffered serious harm in the past in Bangladesh by reason of his real or imputed political opinion or for any other reason, as it found the appellant was able to lead an essentially normal and uneventful life in Bangladesh. The Tribunal accepted that charges had been brought against the appellant but found that they related to the appellant jumping ship in Australia rather than his political opinion. Further, the Tribunal considered that the higher levels of the judiciary in Bangladesh displayed some degree of independence and that there was no inherent unfairness in the judicial process in Bangladesh. 7 The Tribunal was not satisfied the executive director of the company which had employed the appellant had any politically-motivated animosity towards the appellant, particularly in light of the fact the appellant had been able to gain employment in the company and continue there for several years until he jumped ship in Australia. Overall, the Tribunal was satisfied the appellant had no well-founded fear of persecution on the grounds of political opinion. The appellant applied to the Federal Magistrates Court for judicial review of the decision of the Tribunal.

Hearing before the Federal Magistrate 8 By Order dated 5 October 2006, Raphael FM dismissed the appellant's application with costs. Before his Honour, the appellant claimed eight grounds on which the Tribunal fell into jurisdictional error:

The Tribunal failed to take into consideration that the appellant was an active member of the BAP and that he was working in important positions for the party. However the Federal Magistrate observed that this was not correct, pointing to that aspect of the Tribunal's decision where it noted the role the appellant claimed to have had in the BAP.
The Tribunal did not consider his case as a refugee, and that if he went back to Bangladesh he would be in fear of his life because of the BNP. However the Federal Magistrate said it was clear that the Tribunal had considered this issue.
The Tribunal failed to take into consideration that the appellant's family were in danger in Bangladesh. However the Federal Magistrate said Tribunal had considered this issue, and that the importance to be given to this evidence was a matter for the Tribunal.
The Tribunal failed to take into consideration that there was a false case against him at the police station. However the Federal Magistrate said that the Tribunal did consider the issue of charges against the appellant but found that they related to his actions in jumping ship in Australia.
The Tribunal failed to take into consideration the actions of the BNP in threatening him in Bangladesh, including breaking the wall of his house. However the Federal Magistrate said the decision of the Tribunal made it clear that the Tribunal had considered this issue.
The Tribunal failed to take into consideration the kidnapping of the appellant's younger brother in Bangladesh. However the Federal Magistrate said the decision of the Tribunal made it clear that the Tribunal had considered this issue.
The Tribunal failed to take into account the influence of the BNP in the government, bureaucracy and law enforcement agencies in Bangladesh, and how that affects him. However the Federal Magistrate said the decision of the Tribunal made it clear that the Tribunal had considered this issue.
The Tribunal failed to take into account the concerns found in certain independent country information provided by the appellant to the Tribunal. However the Federal Magistrate said that the weight to be given to that information was a matter for the Tribunal.

The appeal 9 By notice of appeal filed on 25 October 2006 in the Sydney Registry of the Federal Court, the appellant seeks the following orders:

The appeal be allowed.
An order of the Judgement be set aside and in lieu therefore orders setting aside the decision of the DIMA and RRT referring the matter to the DIMA & RRT for determination.
An order that no action is taken to remove the applicant from Australia while the decision is pending.
An order for costs.
Any further order that this honourable Court may deem appropriates. (Transcribed without alteration) 10 The appellant has raised four grounds of appeal, which are as follows:
The decision was biased.
The decision was an unreasonable and illogical application of the delegate's mind.
The Federal Magistrate did not consider that the questions not asked by the delegate were repeatedly asked by the Tribunal which resulted in an unfair procedure.
The appellant disclosed a reasonable cause of action in relation to the proceedings which was not considered by the Federal Magistrate. 11 In the appellant's affidavit filed 25 October 2006 with the notice of appeal, the appellant states the following in support of his application: 1. I am a Bangladeshi citizen by birth and came to Australia and applied for protection under the UN convention with the Department of Immigration and Multicultural Affairs for determination of refugee status. 2. The delegate of the minister refused to grant me a protection visa. I applied for review with the Refugee Review Tribunal at Sydney. The RRT affirms the delegate's decision. 3. Prior to my departure from Bangladesh I was living in Bangladesh. I have problems of my political opinion in Bangladesh. 4. I required leave to appeal and serve Notice of appeal against the Federal Magistrates decision. 5. I am unrepresented. No barrister or solicitor assists me. 6. Considering the circumstance stated above, I am expecting that Federal Court of Australia will make favourable decision in relation to my appeal. (transcribed without alteration) 12 On 27 February 2007 the appellant filed written submissions which can be summarised as follows:
The Tribunal erred in law amounting to jurisdictional error in determining whether the harm suffered by the appellant amounted to persecution.
The Tribunal failed to address the claims that, having a progressive political opinion and also being a member of the BAP, he would be persecuted if he returned to Bangladesh.
The Tribunal erred in law amounting to jurisdictional error in determining whether there were adequate protections from the law enforcement agencies in Bangladesh.
The Tribunal did not follow the proper procedure as required by the Migration Act 1958 (Cth), and the situation in Muin v Refugee Review Tribunal [2002] HCA 30 was "perfectly identical" to this case. In particular, the appellant submitted that the Tribunal's letter to the appellant contained a statement which was identical to the one quoted by the judge in Muin [2002] HCA 30, and which the High Court said had misled the applicant in Muin [2002] HCA 30.
The Tribunal did not believe the appellant's claims concerning potential danger to him in Bangladesh, failed to investigate his claims through independent sources, and heavily depended in their reasoning on generalised facts and findings of the Department of Immigration and Multicultural Affairs.
The Tribunal "failed to internalise the circumstantial grounds of (the) review application while considering the claims of (the) review application".
The fact that the Tribunal ignored relevant evidence, and its findings in the face of contradicting independent evidence, indicate actual bias.
The Tribunal made no findings as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future, and failed to assess whether the appellant's fears of being persecuted for being a political activist of Bangladesh were well founded in the reasonably foreseeable future.
The Tribunal did not provide the appellant with particulars of information, which formed part of the reasons of the Tribunal's decision, namely that the persecution against the political activist of Bangladesh had subsided.
The Tribunal made its decision in bad faith. 13 I note that the appellant also claimed "The RRT has failed to investigate my claims, specifically the grounds of persecution, being a woman in Bangladesh". As the appellant is clearly not a woman, this submission is somewhat mystifying. 14 At the hearing before me the appellant made no oral submissions referable to the appeal. However he made a general plea that the Court look with sympathy at his case, and remit the case to the Tribunal for reconsideration. 15 The respondent adopted its filed written submissions.

Findings of the Court 16 In his grounds of appeal and written submissions the appellant has made wide-ranging claims which, in the frequent absence of either substantive argument or particularisation, are difficult to consider. I note also that, in many instances, the grounds raised by the appellant either are not referable to the decision of the learned Federal Magistrate, or raise issues which were not before his Honour and therefore require the leave of this Court: NAJT v Minister for Immigration & Multicultural and Indigenous Affairs (2005) 147 FCR 51. However to the extent possible I have considered the appellant's claims, and make the following observations:

To the extent that the appellant claims Raphael FM erred in considering that either the delegate of the Minister or the Tribunal made an unbiased decision (it is not clear from the grounds of appeal which "decision" the appellant referred to, however I assume the relevant decision was that of the Tribunal as it is that decision Raphael FM was reviewing), I note that this claim is based in a claim by the appellant that the Tribunal ignored relevant evidence and made its findings in the face of contradicting independent evidence. However, as his Honour stated, it was clear that the Tribunal had considered the evidence which was before it. A finding against the appellant on the facts, or ascribing weight to the evidence which is not in the appellant's favour, is not only not bias from the perspective of the Tribunal, but is a legitimate exercise in decision-making by the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
It is not possible for me to determine the manner in which the decision of the delegate was an unreasonable and illogical application of the delegate's mind when this claim is not particularised.
An unfair procedure of the Tribunal will occur if it makes its determination on the basis of new issues put to the appellant which had not been put by the delegate, and where the Tribunal did not put the appellant on notice that the new issues were "live" issues in its decision-making (cf SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63). In this case however the appellant has not identified the new issues to which his attention was not drawn as "live" issues or upon which he did not have an opportunity to make submissions.
In the absence of particularisation, it is not possible to deal with the appellant's claim that he disclosed a reasonable cause of action in relation to the proceedings which was not considered by the Federal Magistrate.
I do not accept the submissions of the appellant that either the Tribunal erred in law in determining whether the harm suffered by the appellant amounted to persecution or that the Tribunal failed to address his claims that, having a progressive political opinion and also being a member of the BAP, he would be persecuted if he returned to Bangladesh. A review of the Tribunal's reasons for decision reveals that the Tribunal considered in some detail the claims of the appellant, the information provided by the appellant, and the likelihood that the appellant either had in the past, or would in the future, suffer harm because of his political opinions.
In claiming that the Tribunal erred in law in determining whether there were adequate protections from the law enforcement agencies in Bangladesh, the appellant seeks a merits review of the decision of the Tribunal by this Court. This is clearly not permissible. In any event, in finding as a fact that the appellant did not have a well-founded fear of persecution, the Tribunal was not required to determine whether the law enforcement agencies of Bangladesh would provide the appellant in a practical sense or otherwise with adequate protections: cf comments of McHugh J in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at 511, Lander J in SVVB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1001 at [22]-[26].
Although the appellant contends that his case was "perfectly identical" to Muin [2002] HCA 30, in the absence of explanation I am unable to identify the similarity other than the broad fact that both cases involved applications for protection visas. In Muin [2002] HCA 30, critical issues of procedural fairness were that: · the applicant in that case was not made aware of the substance of relevant documentary information which was received between the time of the delegate's decision and the Tribunal's decision; · the documentation contained adverse material; and · had the applicant been made aware of the substance of that material, he would have taken certain steps which he failed to take. These issues do not arise in the case before me.
In relation to the appellant's complaint that the Tribunal did not believe his claims concerning his potential danger, I note that this also raises issues of fact which are the domain of the Tribunal in cases of this nature. The Tribunal is not required, as claimed by the appellant, to investigate his claims through independent sources: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 per Gummow and Hayne JJ at [43]. Further, his submission that the Tribunal "failed to internalise the circumstantial grounds of (the) review application while considering the claims of (the) review application" is obscure to the point of being meaningless.
The appellant contended that the Tribunal made no findings as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future, and failed to assess whether the appellant's fears of being persecuted in the reasonably foreseeable future for being a political activist of Bangladesh were well founded. This claim cannot be sustained however in light of: · the view of the Tribunal that it was not satisfied that the appellant had ever suffered any serious harm in the past in Bangladesh as a result of his real or imputed political opinion or for any other reason; · the fact that the Tribunal was not satisfied that the appellant was a leader or activist in the BAP; and · more particularly, in light of the extensive discussion over several pages of the Tribunal's decision concerning the likelihood of future harm to the appellant should he return to Bangladesh.
Finally, there is no evidence to support the appellant's contention that the Tribunal acted in bad faith. 17 In my view the appeal should be dismissed with costs.

The Minister for Immigration & Citizenship be formally added as a respondent.
The appeal be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Counsel for the Appellant: The Appellant appeared in person

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