SZBXR v Minister for Immigration and Citizenship

Federal Court of Australia|2007-11-13|Before: Lindgren J

INTRODUCTION 1 The appellant appeals from a decision of the Federal Magistrates Court of Australia given on 26 July 2007. That Court dismissed an application for review of a decision of the second respondent, the Refugee Review Tribunal (RRT), which was signed on 23 January 2007 and handed down on 13 February 2007. The RRT affirmed a decision of a delegate of the first respondent (respectively the Delegate and the Minister) refusing to grant the appellant a protection (Class XA) visa. 2 The RRT submits to such order as the Court may make, save as to costs.

BACKGROUND 3 The appellant was born in Bangladesh and is a citizen of that country. He arrived in Australia on 14 March 2002 as a visitor. On 26 April 2002, he made an application for a protection visa. On 18 June 2002, the Delegate refused to grant the visa. 4 On 15 July 2002, the appellant lodged with the RRT an application for review of the Delegate's decision. The appellant attended a hearing before the RRT on 24 June 2003 and submitted documents to the RRT in support of his application. 5 On 25 September 2003 the RRT affirmed the Delegate's decision. However, on 21 December 2005 the Federal Magistrates Court made orders setting aside the RRT's decision and remitting the matter to the RRT for reconsideration according to law. 6 On 20 March 2006, the RRT conducted a further hearing in the presence of the appellant. On 9 May 2006 it affirmed the Delegate's decision. On 5 October 2006, however, the Federal Magistrates Court made orders by consent setting aside the RRT's decision and remitting the matter to the RRT for further consideration according to law. 7 On 6 December 2006 the RRT conducted a further hearing, again in the presence of the appellant. As noted earlier, by a decision signed on 23 January 2007 and handed down on 13 February 2007 the RRT again affirmed the Delegate's decision. It is this decision which has given arise to the present proceeding. 8 On 12 March 2007 the appellant applied to the Federal Magistrates Court for review of this last decision of the RRT. On 26 July 2007 a Federal Magistrate dismissed that application (see SZBXR v Minister for Immigration [2007] FMCA 1225). 9 On 14 August 2007 the appellant filed his notice of appeal in this Court that forms the basis of the present proceeding.

THE GENERAL NATURE OF THE APPELLANT'S CLAIMS 10 The appellant claims to have a well-founded fear of persecution arising from political opinion. He was a supporter of the Awami League in Bangladesh. He made a number of claims in a statutory declaration which accompanied his visa application. These claims related to his role in Awami League political activities or political activities of bodies associated with the Awami League. The persecutors identified were supporters of the Bangladesh Nationalist Party (BNP).

THE RRT'S DECISION 11 The RRT summarised the appellant's claims and evidence. The appellant told the RRT that he no longer wished to be politically active and was in fact "fed up" with politics and had "had enough". He said that he did not intend to be involved in politics if he returned to Bangladesh, and said that he would continue his business activities there. Asked why, if he did not intend to participate in any political activities in the future in Bangladesh, he might be at risk from political opponents he replied "because of my past activities". This was a reference to his past activities in support of the Awami League or associated political bodies. Asked to explain why people from the BNP might bother to pursue him he said that they would and that they would target both people who are currently active politically and people who had been politically active in the past but no longer were. 12 The appellant also claimed that his brother in Dhaka wanted to return to politics, and "that [the appellant] would have to support him because he was family". The RRT member reminded the appellant of his earlier evidence that he did not intend to be involved in politics, and the appellant responded that he would "support" his brother. He said that his brother was hoping to be a candidate for the BNP, but that so far candidature had not been offered to him. He claimed that if he was not offered BNP candidature, his brother might be an independent candidate or even a candidate for the Awami League. The RRT member put it to the appellant that he did not know what his brother might do in terms of politics or whether he might in fact do anything, but the appellant replied that he was sure that his brother would do "something". 13 The RRT found that the appellant's support for his brother would be limited to apolitical support and that the appellant had no interest in becoming actively involved in his brother's political activities. The member said she was satisfied that if the appellant returned to Bangladesh he would pursue his business interests and would have no interest in supporting any political party. 14 The member then posed for herself the question whether because of the appellant's past activities or because of a political opinion imputed to him because of his membership of his family, or simply because, without such imputation, he was a member of that family, or because of a combination of these (several) factors, there was a real chance that he would face treatment amounting to persecution if he should return to Bangladesh. 15 The member did not accept that there was anything other than a remote chance that the appellant would face any harm amounting to persecution in Bangladesh because of his past activities. 16 The member then turned to the question of the appellant's membership of a politically active family, and, in particular, to the position of the appellant's brother. The RRT noted that the brother had been involved with the BNP previously, and, according to the appellant's sister's evidence, was a parliamentary candidate for a new party led by Dr B Chowdhury, the Bikalpa Dhara Bangladesh (BDB) party, which was founded in 2004. Apparently, the BDB, at least originally, comprised disaffected former members of the BNP. 17 The RRT accepted that the brother was prominent within the BDB and was being targeted for harm by the BNP, in particular, by a political candidate of the BNP in the brother's area. The appellant himself had no history of support for the BDB. 18 The RRT noted that the appellant had not expressed any intention of residing with his brother or otherwise linking himself closely with his brother in a way that might give rise to an impression that he shared his brother's political opinion. The RRT noted that the BDB's power base consisted of ex-BNP supporters, of which the appellant made clear he was never one. The member stated (p 16): Having regard to all of these matters, I am satisfied that he will not be assumed by outsiders to be a supporter of the BDB merely because of his brother's role within it. Therefore there is no real chance of his being persecuted for the reason of his actual political opinion or a political opinion imputed to him.

19 The member went on to consider the question whether the appellant might be harmed simply because of his membership of his family. The member noted that the appellant had not claimed that his mother or sisters were being threatened or harmed on that account, although the appellant's sister had claimed that a younger brother, who was not a member of any political party, had been "attacked". However, according to the RRT, it had not been claimed by the sister or the appellant that that attack was motivated by the younger brother's membership of the family and the RRT member was not satisfied that it was. On that basis, the member considered the chance remote that the appellant might face harm simply because of his membership of his family. 20 Finally, the RRT member noted that no claim had been made that the appellant feared harm for any reason other than those set out in the member's reasons, and so the member concluded that the appellant did not have a well-founded fear of Convention-related persecution in Bangladesh.

THE JUDGMENT OF THE FEDERAL MAGISTRATES COURT 21 In the Federal Magistrates Court, the appellant contended that the RRT had failed to consider his claim to fear persecution because he would offer support to his brother, and that the RRT took an erroneous approach in law as to the range of acts and conduct included in the notion of "political opinion" under the Convention. 22 The critical paragraphs in the reasons of the learned Federal Magistrate are paragraphs 11 and 12 which were as follows: 11. In the consideration that the Tribunal gave to the issue of political opinion there was no need for the Tribunal to consider risks that were not claimed by the applicant himself. The applicant claimed he would support his brother because of the familial link. It was apparent from the applicant's evidence that the support would be apolitical because the applicant had no continuing interest in politics himself and he was not familiar with his brother's current political opinions. 12. On the material before the Tribunal it was apparent that there were only two plausible risks of harm being faced by the applicant as a result of his intended support for his brother. One was that he might be imputed with the same political opinion as his brother. The other was that he might be harmed because he was a member of his brother's family. Apart from those possibilities there was no real risk that the applicant might be harmed because of any support he might give to his brother. The Tribunal considered and rejected the plausible risks of harm. There was nothing else the applicant had put forward himself that required consideration. Therefore, on the basis of the material before the Tribunal there was no need to consider other abstract or hypothetical possibilities. 23 Following the above paragraphs, the Magistrate expressed his conclusion as being that on the material before it the RRT had not erred, that the RRT's decision was therefore a privative clause decision and the application to the Federal Magistrates Court must be dismissed.

CONSIDERATION OF THE PRESENT APPEAL 24 The grounds of appeal to this Court are as follows:

The Federal Magistrate erred in finding that there was no need for the Refugee Review Tribunal to consider risks of persecution to the Appellant disclosed by the evidence unless such risks had been claimed by the Appellant himself.
The Federal Magistrate erred by finding that the only material that the Refugee Review Tribunal need consider, and the only risk of harm arising on that material, was material and claims of risk of harm put forward by the Appellant himself.
The Federal Magistrate erred by finding that a risk of persecution was abstract on hypothetical because it has not been claimed by the Appellant himself. 25 The way in which the appeal was argued on behalf of the appellant was that the RRT had not considered a claim made by the appellant, namely, that the appellant had a well-founded fear of persecution on the ground of his apolitical support for his brother. According to the submission, this did not depend upon the imputation of a political opinion to the appellant himself and it was something different from membership of the appellant's family. It was put, and I accept, that the notion "for reason of political opinion" in the Convention is not necessarily limited by reference to a positive political opinion held by the asylum seeker. I said as much in SZDRV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 926 at [9]. 26 Mr Young of counsel who appeared for the appellant also emphasised that the RRT is not entitled to limit its determination in all respects to the precise case articulated by the appellant, if the evidence and material accepted by the RRT, or not rejected by it, raises a case on a basis not articulated by the appellant. Mr Young referred to Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1. Mr Young submitted that the Federal Magistrate erred by conceiving of the RRT's duty as being a duty to consider only the case as articulated by the appellant. 27 The clarity with which a claim must appear before the RRT will be required to deal with it cannot be identified or described in such as way that the application of the test in all cases will be free of difficulty. There can be no doubt that an asylum seeker is not required, at peril of failure, properly to classify or characterise his or her allegations as demonstrating one or other of the "fears" identified in the Convention relating to the Status of Refugees. On the other hand, a claim (and in this sense a case) that is not clearly enough asserted on the materials before the RRT is not one that must be addressed. It has been said that even if a claim might be seen to arise on the materials before the RRT, there will be no error unless the claim represents "a substantial, clearly articulated argument relying upon established facts": see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [60]-[61] and [68]. 28 I have considered carefully the critical passages in the RRT's reasons for decision and although repetition is involved, I set them out as follows (pp 8-9): [The appellant] also claimed that his brother in Dhaka wanted to return to politics now, and that [the appellant] would have to support him because he was family. I reminded him of his earlier evidence at the hearing that he did not intend to be involved in politics if he returned to Bangladesh. He responded that he would support his brother. He said that his brother was hoping to be a candidate for the BNP but so far this had not been offered to him. I put to him that therefore it was uncertain what his brother might do. He agreed that his brother was not yet a BNP candidate, but claimed that his brother might then be an independent candidate or might even be a candidate for the Awami League. I put to him that it appeared to me that he did not know what his brother might do in terms of politics or if he might in fact do anything. [The appellant] said that he was sure his brother would do "something".

I asked him to explain what it was about him that had made BNP supporters want to kill him. He responded that people always wanted to kill political opponents. They wanted to kill him to get him out of the political scene. I put to him that it seemed, as he no longer wished to be part of the political scene, that they would no longer wish to kill him or harmed [sic] him. He responded that they would because he had been in the political scene in the past.

29 I do not think that the appellant was making a claim that was not considered by the RRT within the scope of the authorities to which I have referred. It will be noted that the appellant's first response to the question why he might be at risk was "because of my past activities". Once it is accepted that the appellant was not himself intending to be active in political matters, the question arose as to what the appellant meant when he said that he would have to support his brother because he was family. The evidence was very vague as to what the brother would be doing. The appellant could only say that he was sure that his brother would do "something" (of a political nature). So the appellant's evidence was evidence that because of the family relationship he would "support" his brother in the brother's doing "something" of a political nature. The RRT correctly observed that the appellant did not give evidence, for example, that he would support his brother's campaigning or offer his brother domestic accommodation or financial support. The RRT did consider the possibility that the appellant's claim might be simply that he would be persecuted because of the family relationship, and gave reasons for rejecting that claim. 30 Ultimately, the question raised by the appeal is whether the RRT fell into error by not addressing in any more detail than it did the vague claim by the appellant that he would have to support his brother because his brother was family. I do not think that the RRT did fall into error in that respect.

CONCLUSION 31 For the above reasons, in my view the RRT did not make any jurisdictional error and its decision was a privative clause decision. The conclusion of the Federal Magistrates Court was correct. 32 The appeal should be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Counsel for the Appellant: Mr J R Young

Date of Hearing: 12 November 2007

Date of Judgment: 13 November 2007

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Cases Cited (5)

Cited By (1)