SZFEG v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1. This is an appeal from a decision of Federal Magistrate Scarlett given on 1 June 2005 dismissing an application for review of a decision of the Refugee Review Tribunal ("RRT") handed down on 18 November 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa.

Background 2. The appellant is a citizen of Bangladesh who arrived in Australia on 18 January 2004. He lodged an application for a protection visa on 10 February 2004 claiming a well-founded fear of persecution because of his political opinions and membership of the Jatiya Party. 3. In a statement dated 7 February 2004 which the appellant lodged in support of his application for a protection visa he claims that he was an active member of the Jatiya Party involved in organising political meetings and processions in his district against autocratic governments. 4. He claims that on 10 August 2003 a "terrorist" group from the Bangladeshi National Party ("BNP") came to his business, a construction and trading company, to extort money from him. As he was unable to pay he was kidnapped, tortured and urged to abandon his support for the Jatiya Party. He was left unconscious by the roadside and spent two weeks in hospital. 5. The appellant claims that as a result of this incident he fled with his family to Dhaka where he re-established his business. However, two months later the terrorists located him and threatened him. When the appellant reported this to the police he says that they refused to take action upon being told that the attackers were from the BNP, which was the party in power in Bangladesh. 6. At a hearing before the RRT on 21 October 2004 the RRT asked the appellant for further information about his claim that he was attacked on 10 August 2003. The appellant explained that in September or October of 2002 a group of extortionists approached him and demanded a sum equivalent to AUD$50,000. When he was asked by the RRT why he had been targeted by persons he described as terrorists he stated that the local Member of Parliament was from the BNP and wanted to ensure the financial support from the business community came to his party. 7. The RRT noted that, contrary to his original submission, the appellant stated that the terrorists were simply extortionists who made demands for money and carried out their attacks regardless of which party was in power. He could not confirm any connection between the attackers and the BNP. However, the appellant claimed that when he was kidnapped the attackers threatened to kill him unless he joined the BNP. 8. The RRT observed that there were inconsistencies between the appellant's original statement that he reported these incidents to the police and his recollection of the hearing that he had not approached the police but that a friend had done so on his behalf. 9. The RRT raised with the appellant the fact that in his application he claimed the police refused to assist him and at the hearing he stated that the police were still trying to find the culprits. The appellant agreed that his original statement was not correct. 10. The RRT asked the appellant about his claimed second assault in Dhaka and the appellant indicated that it involved the same persons involved in the first extortion and kidnapping attempt, and indicated that he did not seek police assistance. The appellant agreed with the country information put to him at the RRT hearing indicating that "the relationship between the Jatiya Party and the BNP was quite neutral" and, unlike the Awami League, his party was not seen as the enemy of the BNP. Furthermore, there were four factions in the Jatiya Party and he was a member of the Ershad which was the closest to the BNP. 11. The RRT also noted that independent country information indicated the appellant's claims of extortion, kidnapping and torture were descriptive of a general tendency of violence in Bangladeshi society and politics. The RRT accepted that the appellant was involved in the Jatiya Party but the RRT concluded that the appellant's evidence was not reliable given the significant differences between his evidence before the RRT and in his original claims particularly regarding the connection between the extortionists and the BNP and whether police assisted him. 12. Whilst the RRT accepted the appellant's claims of attack by extortionists, it found that this was primarily because the appellant was seen as a wealthy businessman; his membership of the Jatiya Party was incidental. The RRT did not accept that the appellant was targeted because of his political beliefs or affiliations and noted that the appellant had confirmed that the attackers were common criminals who claimed to support the governing party as a matter of convenience so as to obtain money. The RRT found no Convention nexus and was not satisfied that the appellant was at risk of persecution because of his political beliefs. 13. The RRT did not accept the appellant's claims about police inactivity and observed that the appellant had given evidence that he had not reported the attacks to the police. The RRT found there was no evidence that the appellant could not expect the normal level of protection afforded by Bangladeshi authorities. 14. The RRT noted that at the hearing, the appellant commented that if he returned he would not get involved in politics again. The RRT observed that even if the appellant did wish to continue with his political activities, there was no real chance that he would suffer Convention related harm "now or in the foreseeable" future. 15. Accordingly, the RRT found that the appellant did not have a well founded fear of persecution for any Convention reason and affirmed the decision not to grant him a protection visa. 16. Federal Magistrate Scarlett referred to the appellant's amended application for review and observed at [7] that it contained a comprehensive set of grounds appearing to cover every ground of relief available on judicial review, with the exception of actual bias. 17. The learned Magistrate noted that the appellant provided no particulars of one of his claims, namely, that the RRT acted unconstitutionally and if there was no evidence on this question, the ground could not be taken further, see at [8] - [9]. Similarly, his Honour found that the appellant provided no evidence to support his claim that the RRT denied him procedural fairness or natural justice, see at [20]. He also found that there was no evidence of the unparticularised claim of constructive failure to exercise jurisdiction; see at [27]. 18. The learned Magistrate noted that particulars had been provided to support a claim of the fourth ground of review, namely, that the RRT "breached a judicial duty to make or apply a finding of law using formal logic". His Honour quoted the particulars and observed that they were not, in his mind, capable of being reasonably understood and he therefore dismissed that ground; see at [14]. 19. His Honour also dismissed the ground of bad faith referring to the High Court authority in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at paragraph 69. His Honour accepted submissions for the Minister that two further grounds relied upon by the appellant were an impermissible attempt to seek merits review; see at [28].