SZBNG v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 In proceeding NSD 121/04 the applicant applies under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal ('RRT') (see also s 475A of the Migration Act 1958 (Cth) ('the Act')). 2 The decision of the RRT was made on 18 December 2002. By that decision the RRT affirmed a decision of a Delegate of the respondent (respectively 'the Delegate' and 'the Minister') not to grant a protection visa to the applicant. 3 In proceeding N 2487 of 2003 the same applicant applies under the same statutory provision for relief in relation to a decision of the Migration Review Tribunal ('MRT'). The MRT decision was given on 16 December 2003. By that decision the MRT remitted a decision of a delegate of the Minister on 27 November 2003 to refuse to grant to the applicant a Bridging E (Class WE) visa for which the applicant had applied on 25 November 2003. The MRT's decision was to remit the decision under review, finding that the applicant was entitled to the grant of a Bridging E (Class WE) visa, except for clause 050.224, and the MRT affirmed the decision under review to request a security of $10,000.00. The gravamen of the applicant's complaint in relation to the MRT decision was the requirement of the security of $10,000.00. 4 In the event that the applicant fails in his application for relief in respect of the decision of the RRT, his application for relief in respect of the decision of the MRT must fail, because there will no longer be pending an application for relief in respect of the Delegate's decision not to grant the protection visa. 5 In the circumstances I have heard both applications together. 6 The applicant, claiming to be a citizen of Bangladesh, arrived in Australia on 27 February 1999. On 9 April 1999 he lodged an application for a protection visa with a supporting statement dated 9 April 1999. He was assisted by a registered migration agent. The applicant's claim was that he had a well-founded fear of persecution from Muslims in Bangladesh on account of the fact that he was a Hindu and also on account of the fact that he had been a supporter of the Bangladesh Nationalist Party ('BNP'), and, indeed, had been a worker for that party. 7 According to his statement lodged in support of his application for the protection visa 95 per cent of Hindu people in Bangladesh belong to the Awami League, so that by joining the BNP, he, a Hindu, was an exception to the norm. In his statement, the applicant referred to the fact that he had worked in support of the election of the BNP but the Awami League came to power and he suffered persecution at the hands of the Awami League supporters. In a submission in writing which he has put to the court today, he states: 'My political opinion made the Awami League leaders and workers unhappy since traditionally they consider the Hindus in Bangladesh as a reserved vote bank for their party... I was targeted by the Awami League workers and was tortured on some occasions.' 8 As I indicated, the other claim was persecution on the ground of the applicant's Hindu religion. 9 On 7 June 1999 the Delegate refused to grant a protection visa and on 28 June 1999 the applicant applied to the RRT for a review of the Delegate's decision. 10 An important relevant event occurred in October 2001 - the BNP was returned to power in Bangladesh. That is to say, since the general elections at that time, the party which the applicant had supported and for which he had worked, was in power as the government. 11 As noted earlier, on 18 December 2002 the RRT affirmed the Delegate's decision refusing a protection visa. 12 With respect, the reasons of the RRT are unsatisfactorily brief. One would not wish to encourage unduly prolix reasons but it is important that a statement of reasons, although they perhaps cannot be expected to satisfy a disappointed applicant, will give an indication that the RRT has indeed considered the important claims made. I do not say that the RRT did not consider them in this case. Moreover, having read the applicant's statement which supported his application for the visa, I have some sympathy with a statement made by the Member that he found the applicant's evidence 'confused and unconvincing'. Nonetheless, the applicant did provide a five page (29 paragraph) statement which was disposed of by the RRT within the space of 11 paragraphs. They are so brief that I found it convenient to set them out in full as follows: 'I am satisfied that the Applicant is a Bangladeshi national. He is a Hindu and has been a supporter of the BNP. He claims that he is unwilling to return to Bangladesh as he fears that various groups of Muslims will kill him for a variety of reasons. I found the Applicant's evidence regarding these groups confused and unconvincing. I am not satisfied that the Applicant was being truthful. In any event, I am not satisfied that any such fear of persecution is well founded. I accept that the independent evidence shows that Hindus in Bangladesh have been suffering increasing harassment and harm from fundamentalist Muslims and that the new government has lessened the general level of religious tolerance that has prevailed in Bangladesh. I also note that it [is] many years since the Applicant was at college. His application form states that he left college in 1987, twelve years before he left Bangladesh. It would seem likely that if his enemies from college days had wished to harm him they would have done so by now. I am not satisfied that there is any real chance that any enemies he may have from college days will persecute him if he returns to Bangladesh. Nor am I satisfied that the Applicant, a past supporter of the BNP, would be denied protection from Awami League thugs by a BNP- led government. I am not satisfied that his involvement in BNP politics and campaigns will put him at any risk of persecution should he return to Bangladesh. I am not satisfied that there is any real chance that he will be killed by Muslims who want all Hindus to leave Bangladesh. I note that there [are] many millions of Hindus in Bangladesh, and while some Muslims may want them gone there does not seem to be any evidence that Hindus generally are at risk of persecution. I note the Applicant's claim that he owes creditors money and that they may harm him if he does not repay the loan, and that any such harm may be perpetrated by his Muslim enemies. I am not satisfied that any harm arising out of his business dealings would be for a Convention reason. That is, his being a Hindu or a former BNP activist would not be the essential and significant motivation for any such persecution. I am not satisfied that the Applicant has a well founded fear of persecution for a Convention reason.' 13 By his application which commenced this proceeding, the applicant relies on the following 13 grounds: '1. The tribunal did not take into account the court case against me in Bangladesh of a convention based reason. 2. I am the victim of minority, particular social group. 3. RRT did not require the comment regarding the all of my claims. 4. The tribunal made his decision in bad faith. 5. The tribunal deprived me of the natural justice. 6. The tribunal denied the evidentiary proof of my claim. 7. The tribunal's decision did not reflect the material facts of my claim. 8. The tribunal has given a decision, which was preset in the back of it's mind. 9. The tribunal mixed up many facts with this decision which affected the decision. 10. The tribunal concentrated in particular fact, while ignored many other facts in this condition. 11. The tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim. 12. I was misunderstanding due to this I lodge my judicial review application late. 13. I will provide more details of grounds later.' 14 Ground 4 alleges bad faith and ground 8 alleges bias. There is no merit demonstrated in either of these grounds. Ground 11 may also be an allegation of bias but is perhaps simply an expression of disagreement with the RRT as to the result. 15 With the exception of ground 1, the remaining grounds seem to seek to challenge the Member's failure to be satisfied that the applicant was being truthful. Before me today in oral submission, the applicant has said that what he seeks is a further opportunity to put evidence before the RRT with a view to persuading it to a different result. I have explained that that is not a power allowed to the Court. 16 Ground 1 seems to be based on paragraph 25 of the applicant's statement supporting his application for the protection visa in which he asserts that when the Awami League came to power: 'In the name of controlling goons the police arrested a large number of leading activists of BNP. I was one of them. As a part of Awami oppression they filed a number of false cases against me.' It is true that the RRT did not refer expressly to this matter but the Tribunal clearly accepted that the scene had changed since the BNP had come to power. 17 I do not see any jurisdictional error in the reasoning of the RRT. In his written submissions the applicant suggests that it was inconsistent for the RRT to state that it would seem unlikely that the applicant's enemies from his college days wished to harm him and yet to say that Hindus in Bangladesh have been suffering increasing harassment and harm from fundamentalist Muslims and that the new government has lessened the general level of religious tolerance that has prevailed in Bangladesh. I would have wished that the Member had been more explicit, but I do not think there is necessarily an inconsistency. The Member is saying that since the applicant left college in 1987, 12 years before he left Bangladesh, a claim of fear of persecution from the particular individuals who were his enemies in college days is not supported, but this leaves open the position of Hindus more generally in Bangladesh. It seems that essential to the reasoning of the RRT is its acceptance that "there does not seem to be any evidence that Hindus generally are at risk of persecution". The Member had referred to s91R of the Act and to its requirement that persecution involve "serious harm". 18 The applicant has raised the fact that he has made a complaint to the Migration Agents Registration Authority against his former migration agent. This is not a matter relevant to the question whether the RRT was guilty of a jurisdictional error in connection with its decision on the application for review. The former migration agent was not the agent of the RRT. In any event the complaint which has been asserted has been described before me only in the most general terms and it is not demonstrated that there is any particular complaint which could have affected the decision of the RRT. 19 For the above reasons the application in NSD121/04 will be dismissed with costs. The result of that dismissal will be, as noted earlier, that there will not be pending an application challenging the decision of the RRT. 20 It would be futile to remit the application for the bridging visa since it would no longer be open to the MRT to eliminate the requirement of the security of $10,000 because it would no longer be open for a Bridging E (Class WE) visa to be issued in the absence of a pending challenge to the decision refusing the protection visa.