SZFTJ v Minister for Immigration and Citizenship

Federal Court of Australia|2007-08-07|Before: Middleton J

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a federal magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 26 September 2006. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant the appellant a protection visa.

FACTUAL AND PROCEDURAL BACKGROUND 2 The appellant is a citizen of Bangladesh. He arrived in Australia on 22 April 2004, and applied for a protection visa on 3 June 2004, which was refused by the delegate. 3 The appellant claimed to fear persecution in Bangladesh on account of his religious beliefs and his status as a social activist. The appellant claimed to be a Buddhist and a founding member of a Buddhist Co-operative and feared persecution from Muslims in Bangladesh. He also claimed to be involved with the Awami League ('AL'), and feared members of the rival Bangladesh National Party ('BNP'). He claimed to have been assaulted by BNP members, and that the Government tried to ban the operation of the Buddhist Co-operative. He also claimed he was threatened by Muslims and, after his wife was attacked in March 2004, they fled to Australia, arriving on 22 April 2004. The appellant's fear of persecution was said to arise in two categories: one category was fear as a result of events personal to the appellant; the other category was said to arise from general discrimination against Buddhists in Bangladesh. 4 The appellant applied to the Tribunal (differently constituted) for review of the delegate's decision. On 20 October 2004, the Tribunal (differently constituted) held a hearing, after which it wrote to the appellant pursuant to ss 424 and 424A of the Migration Act 1958 (Cth) ('the Act'). The Tribunal made a decision on 31 December 2004 affirming the delegate's decision to refuse to grant the appellant a protection visa. That decision was set aside by the Federal Magistrates Court, by consent, on 7 June 2006 and the matter was remitted to the Tribunal to be determined according to law. 5 On 28 July 2006, the Tribunal sent a further s 424A letter to the appellant, to which the appellant responded, but it did not invite the appellant to attend a hearing. Instead, the Tribunal listened to a recording of the hearing on 20 October 2004 before the Tribunal (as previously constituted). On 14 September 2006, the Tribunal made a decision affirming the delegate's decision. 6 In its decision, the Tribunal found that the appellant was not convincing, noting that he was vague on many matters and inconsistent with his stories. The Tribunal found the appellant generally incredible. 7 The Tribunal accepted that the appellant was a Buddhist and AL supporter, but did not accept that he had ever been threatened or harmed for either reason. The Tribunal rejected the appellant's claims of past harm.

THE FEDERAL MAGISTRATE'S DECISION 8 On 23 October 2006 the appellant sought judicial review in the Federal Magistrates Court. The appellant was represented by counsel at the hearing, and only one ground of appeal was pressed, namely: that the Tribunal failed to make a finding in relation to the claim that Buddhists in Bangladesh were subject to general persecution. 9 His Honour noted that the appellant's case was limited to whether the Tribunal fell into jurisdictional error in failing to deal with the appellant's claim of general discrimination against Buddhists in Bangladesh. 10 His Honour found that the Tribunal had noted the appellant's claim of general discrimination against Buddhists in Bangladesh, including discrimination in employment and in obtaining police protection from violence. His Honour observed that the Tribunal referred in detail to the appellant's evidence at the Tribunal hearing on 20 October 2004, and specifically referred to his second category of claim, as follows: The applicant confirmed that he believed that Buddhists are subject to general discrimination amounting to persecution in Bangladesh. 11 The federal magistrate made the following observations (at [23] to [28]) in respect of the Tribunal's decision: In my view, the Tribunal simply did deal with both claims. It is apparent, on my reading of the Tribunal decision, that the Tribunal was aware of the claim that Buddhists were subject to general discrimination amounting to persecution in Bangladesh, and was not only aware that the applicant was a Buddhist but was prepared to make that finding. The acknowledgment of the applicant's general claims of discrimination amounting to persecution directed towards Buddhists in Bangladesh appears throughout the Tribunal's decision. The Tribunal referred to the applicant having been questioned at the hearing about this claim and how general country information was put to him, which referred to particular problems for Bangladeshi Buddhists from the Chittagong Hill Tracts and discrimination against minority groups generally but did not refer to any persecution of Bengali Buddhists. The applicant was asked about that and replied to it, saying that his village, in particular, was not a good place for Buddhists; there are Muslims and Buddhists living there but Buddhist religious programs have been threatened. The applicant went on to refer, in vague terms, as the Tribunal said, to the killing of a local Buddhist leader in his area some two years earlier, and the Tribunal noted that that murder had been widely reported, and referred to independent country information. This all appears at page 95 of the Court Book. The Tribunal noted that the previous Tribunal member had asked the applicant about seeking protection in Europe during his visit there in October 2002, and noted the previous Tribunal member expressing serious concerns about the veracity of the applicant's account. The letter written to the applicant by the Tribunal on 28th July 2006 is a letter which was clearly intended to be written to comply with the provisions of s. 424A of the Migration Act. That letter sets out the Tribunal's concerns about pieces of information, in particular: Since your arrival in Australia, you have not maintained contact with fellow practitioners in Bangladesh or established contacts with Buddhists in Australia. This may lead the Tribunal to conclude that you do not have a level of commitment to Buddhism or to your community which would attract hostile attention to you. In your primary application, you claimed to have had a leadership profile within your community, yet your description of your role at the mediation centre - organising of functions and managing funds - the lack of any reference to you in public sources, whereas the names of other prominent persons associated with the monastery, including the current secretary-general, are readily available, and your vague and incomplete answers concerning the current personnel at the monastery and associated institutions call into question your claimed prominence. These issues relate to the applicant's claim of being persecuted - not on the basis of his political profile but on the basis of his membership of the Buddhist-led religion in Bangladesh. It should be remembered that, where there is a claim of general discrimination against members of a particular religion in a particular country, an applicant will only establish a well-founded fear of persecution if the applicant is not only a member of that religion but is seen to be a member of that religion by those people who would persecute, or are likely to persecute, or may be perceived to persecute, members of that religion. In my view, the question of the applicant's membership of the Buddhist religion is squarely on the agenda, and, in my view, the Tribunal's findings deal with both issues. I am satisfied that no jurisdictional error has been made out. 12 His Honour found no jurisdictional error and dismissed the appeal.

GROUNDS OF APPEAL 13 By notice of appeal filed on 12 April 2007 in this Court, the appellant raised a number of grounds of appeal. However, in his submission filed with the Court on 1 August 2007, the appellant did not press all grounds apart from one, namely: that the federal magistrate failed to consider whether the Tribunal failed to consider the appellant's claim that Buddhists are subject to general discrimination in Bangladesh amounting to persecution.

CONSIDERATION 14 The principles of law were not in contention between the parties. In both the appellant's and the first respondent's written submissions, reference was made to the decision of the Full Court in WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630, which provides that an inference may be drawn that the Tribunal did not consider a particular issue if it fails to deal directly with that issue in its reasons: at [47]. However, the Full Court also observed: But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 15 The appellant also relied upon the following passages in the Full Court decision in NABE v Minister for Immigration and Multicultural Affairs (2004) 144 FCR 1 at [55]: Where the tribunal fails to make a finding on "…a substantial, clearly articulated argument relying upon established facts" that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction… And at [63]: A failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. 16 I am prepared to accept that discrimination was raised by the appellant but only in a very general and background way, and not so much as a claim which was a "substantial, clearly articulated argument relying upon established facts". I do not characterise, unlike the federal magistrate, the matter of discrimination as a claim which necessarily required the detailed treatment as sought by the appellant. The main focus of the claim was the real chance of persecution and fear of physical harm. The general discrimination complained of by the appellant was to lead to such physical harm. This is the gist of the complaint made by the appellant in his statutory declaration on 1 June 2004 when he declared: On my return back to Bangladesh, I have real chance of being persecuted because of my community profile. My life will be under threat. There is no safety and security of life in Bangladesh for an activist like me. I shall be arrested and put into jail in relation to the false cases. I have no future in Bangladesh. I shall be discriminated in every walks of my life. My life will be in jeopardy. Under these circumstances I firmly believe that my case has merit to be considered. 17 The question of general discrimination before the Tribunal arose because the appellant confirmed that he believed Buddhists were subject to general discrimination amounting to persecution in Bangladesh. The Tribunal said: The Applicant confirmed that he believed that Buddhists were subject to general discrimination amounting to persecution in Bangladesh. The Tribunal confirmed that the Applicant was an ethnic Bengali, and alerted him to independent information from sources such as the United States, United Kingdom, Amnesty International and Human Rights Watch which described particular problems for Bangladeshi Buddhists from the Chittagong Hill Tracks ('tribals'). These sources referred to discrimination against minority groups generally, but did not refer to any persecution of Bengali Buddhists. The Applicant said his village in particular was not a good place for Buddhists. There were Muslims and Buddhists living there, but Buddhist religious programs had been threatened. 18 The Tribunal went on to say, concentrating on whether Buddhists were targeted generally: The Applicant described, in vague terms, the killing of a local Buddhist leader in his area some two years earlier. The Tribunal confirmed that the person question was Monk Ganojyoti Mohashthobir, whose murder was widely reported in the Bangladeshi press (eg. The Daily Star, 24 April 2002, http://www.thedailystar.net/dailystarnews/200204/24/n204210.htm, accessed on 20 October 2004). The Applicant described the circumstances of this killing in terms consistent with the press reports. He attributed the killing to attempts to prevent the monk from fulfilling his religious duties. The Tribunal noted that press reports suggested instead extortion or attempts to seize his temple's land, and that these seemed to point to general law and order problems in Bangladesh rather than targeted actions against Buddhists. The Applicant said that the monk was killed in a sizeable village (Raozan) next to the Applicant's village. This incident was relevant because it showed that all Buddhists faced danger. 19 In this incidental way the matter was raised, and was effectively disposed of by the Tribunal immediately. I think where the appellant only stated his belief that Buddhists were subject to general discrimination amounting to persecution in Bangladesh, the Tribunal was entitled to reject that as a statement of existing fact, on the basis of the independent information. 20 It seems, therefore, clear to me that the Tribunal did advert to the general question of discrimination against Buddhists in Bangladesh and its finding that the appellant did not have a well-founded fear of harm in Bangladesh for reason of his religious beliefs must be taken as being made in view of the matter of general discrimination being raised in the way I have characterised. It does not matter that the Tribunal did not at the end of its reasons specifically deal with general discrimination - it had already been dealt with by the Tribunal and effectively discounted. 21 Even if one treated the question of general discrimination as being a substantial, clearly articulated argument, as the Full Court cautioned in WAEE 75 ALD at [47], an inference that the Tribunal did not consider such a particular claim is "not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point". 22 This is not the situation that confronted Spender J in SZGOP v Minister for Immigration and Citizenship [2007] FCA 836 or Tamberlin J in Applicant NAKB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 534, where their Honours were dealing with a clearly articulated claim, and where their Honours could not find that the issues sought to be agitated were either dealt with generally or specifically in any part of the Tribunal's findings. 23 However, I do agree with the appellant's contention that the "Findings and Reasons" of the Tribunal do not specifically deal with the general discrimination point. I also agree with the contention of the appellant that the first respondent could not rely upon the following finding of the Tribunal as specifically dealing with the matter of general discrimination: I am prepared to accept that the applicant is Buddhist but I do not accept that he had a leadership position or that he suffered any harm amounting to persecution in Bangladesh. His evidence has been vague and contradictory and, at times, not believable. His delay in leaving Bangladesh further undermines his credibility. Accordingly, I do not accept that the applicant was threatened or attacked or that any member of his family was attacked for reason of his religion or his real or imputed political opinions. Nor do I accept that there is a real chance of such things occurring to him in Bangladesh should he return there in the foreseeable future. 24 This finding was clearly limited to the rejection of the appellant's claims concerning events personal to him. However, as I have said, the question of general discrimination was effectively dealt with in the earlier passages of the Tribunal's reasons to the extent that that question needed to be addressed in the circumstances of the claim made by the appellant. In light of the reasons above, I will order that the appeal be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

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