SZURL v Minister for Immigration and Border Protection

The legislative criteria 4 Eligibility to receive any visa largely depends on the Minister being satisfied that the criteria prescribed by the Migration Act 1958 (Cth) or the regulations made under it have been satisfied and the grant is not being prevented by any other provision of the Act or other law of the Commonwealth: Migration Act, s 65. The principal criteria for the grant of a protection visa appear in s 36(2) of the Act. At the material time, s 36(2) relevantly required that the visa applicant be: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm … 5 The appeal in the Tribunal is a new hearing and for the purpose of that hearing the Tribunal stands in the shoes of the Minister or his delegate. To this end it may exercise all the powers and discretions conferred by the Act on the Minister: Migration Act, s 415. Accordingly, it is for the Tribunal to be satisfied that the relevant criteria have been met. Thus, the references in s 36(2) to "the Minister" should be taken as references to the Tribunal. 6 Paragraph (a) of s 36(2) is commonly known as the refugee criterion and (aa) as the complementary protection criterion. 7 Protection obligations under the Refugees Convention (that is to say, the Convention relating to the Status of Refugees done at Geneva on 28 July 1951) as amended by the Refugees Protocol (that is to say, the Protocol relating to the Status of Refugees done at New York on 31 January 1967) apply to refugees. Article 1A(2) of the Refugees Convention relevantly defines a refugee as a person who: owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country … 8 A person has a well-founded fear of being persecuted for a Convention reason or reasons if he or she has a genuine fear founded on a real chance that he or she would be persecuted for that or those reasons: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. In other words, there is both a subjective and an objective element to the question (see Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [72] (Gummow and Hayne JJ)). 9 The Migration Act also required that the alleged reason(s) be "the essential and significant reason(s)", that the harm be "serious", and that the conduct be "systematic and discriminatory": see the former s 91R. 10 "Significant harm" for the purpose of the complementary protection criterion is defined by ss 5(1) and 36(2A) to refer only to arbitrary deprivation of life, the imposition of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. 11 Further limits are placed on the scope of the term by s 36(2B).

The procedural history 12 The appellant's application was considered by a delegate of the Minister and, following an interview with the appellant, rejected, because the delegate was not satisfied that the appellant met the criteria in s 36(2) of the Act. 13 The appellant then appealed to the Tribunal before which he was represented by a registered migration agent and gave evidence through a Bengali interpreter. A convenient summary of his case to the Tribunal appears at the end of a lengthy submission made by his migration agent to the Tribunal after the conclusion of the hearing: 96 It is our submission that Australia owes protection obligation (sic) towards the applicant. In summary, the applicant's claims establish the following: a. The applicant is a National of Bangladesh. b. The applicant is outside of his country and in Australia. c. The Persecutors, the applicant fears, consider the applicant holds a political opinion against the persecutors due to his actual political opinion. d. Country information supports the finding that human rights abuses in particular against Opposition political supporters and activists continue in Bangladesh. e. Country information confirms that Awami League activists continue to target BNP activists and supporters at both the national and local levels, and in fact the reports indicate that the Awami League government has started cleaning program (sic) to eliminate BNP members and activists to strengthen their powerbase. f. The applicant reports that he is a supporter and a member of the BNP. g. The applicant further reports that he will continue to support and be involved in political activities in Bangladesh, if he returns to Bangladesh. h. Political activists who do not accept the ruling government's (Awami League) political views face persecution from the authorities. i. The independent evidence supports the finding that BNP political activists continue to suffer harm at the hands of the Awami league supporters and miscreants with the active or tacit support of the authorities. j. Further, the reports and recent incidents indicate that not only high profile BNP political leaders, but also the local level BNP political supporters and members face serious harm from the Awami League supporters. k. The decisions of the RRT including the opinions of Senior Members of the Tribunal indicate that there is no place in Bangladesh to which a BNP activist can safely relocate. l. Thus, the applicant holds a political opinion against the ideologies of the persecutors and therefore the applicant faces potentially life threatening harm due to the cumulative reasons of his political opinion and given the current situation in Bangladesh. 97 For the reasons outlined above, we submit that the applicant's political opinion, and particular social groups are essential and significant reasons for the persecution that would, were out client to return to Bangladesh, involve serious harm amounting to systematic and discriminatory conduct. 98 We further submit in the particular circumstances of our client's case, and in the light of the above information that the applicant should be recognised as a refugee. 14 The Tribunal accepted that the appellant was a citizen of Bangladesh and also accepted he was a BNP member who, in 1998, as he claimed, held a position as publications secretary in the district where he then lived. But, despite country information about escalating political violence which it considered "support[ed] in a general way" certain of the appellant's claims, the Tribunal did not find the appellant had given credible evidence about his claims. Consequently, it did not accept the appellant's account of harm done to him or that there was a real chance he could face serious harm if he were to return to Bangladesh. It pointed to inconsistencies between the appellant's account to the Tribunal and the statement he made which was attached to his protection visa application. 15 The Tribunal also considered it to be inconsistent with the appellant's claim that he had been facing harm in Bangladesh since October 2008 that he did not avail himself of various short stay visas he held in 2009 and 2010 for travel to a number of other countries and that he returned to his home in Dhaka from each of the other countries to be with his family and to attend to his business. In addition, it pointed to the appellant's evidence that he had to move to five different addresses in Dhaka to avoid harm from that time as inconsistent with the evidence that he worked in the same establishment in Dhaka from 1997 until he left for Australia in 2012 and that he regularly travelled back and forth from Dhaka to the region where his family lived. In the light of these matters, the Tribunal did not accept the appellant's claim that his political opponents had looked for him but failed to find him. 16 Moreover, given its concerns about the appellant's credibility, the Tribunal did not accept his claims that, as a result of his difficulties with members and supporters of the Awami League and their inability to find him, his brother had been arrested and imprisoned. 17 As I noted above at [14], the Tribunal accepted that the appellant was a BNP member and held a position as a publications secretary in his local district in 1998. But it did not accept that he was now a political activist or that he had any political profile in Bangladesh. Nor did it accept that he was or would be a target for harm by Awami League "supporters/members/activists/authorities because of his BNP position/s or activities". It rejected as unreliable an undated document from the President of the BNP in Australia about the appellant's activism on behalf of the BNP as inconsistent with the appellant's own evidence to the Tribunal. 18 In view of its assessment of the appellant's evidence and the country information about the prevalence of document fraud in Bangladesh, the Tribunal did not consider that the documents produced by the appellant to support his claim were reliable either. 19 In the result, the Tribunal concluded that there was "no plausible evidence" that the appellant had been, or had a real chance of being, persecuted in Bangladesh by his political opponents, the police or anyone else, either now or in the foreseeable future. 20 The Tribunal said it also considered whether the appellant met the complementary protection criterion and decided he did not. 21 Accordingly, the Tribunal affirmed the decision of the delegate not to grant him a protection visa.

The application to the Federal Circuit Court 22 The appellant then applied to the Federal Circuit Court for judicial review, seeking that the order of the Tribunal be quashed and a writ of mandamus be issued directing the Tribunal to determine his application according to law. 23 The application for review was based on two grounds. 24 The first ground was that the Tribunal failed to exercise its jurisdiction by failing to consider all aspects of the appellant's claims. 25 The appellant particularised this ground in the following way (without alteration): I claimed that I will face harm because I am a supporter and member of the Bangladesh Nationalists Party (BNP). The Tribunal has accepted that I am a member of the BNP in Bangladesh and was the Publication secretary in1998. However, it failed to assess my harm on the basis of my support to the BNP in light of the recent country information submitted my legal representatives in their submission in paragraph 28 which clearly stated the government is preparing to initiate a "cleansing mission" against political opposition and those who have raised a voice against the regime. The Tribunal failed to assess my claim in light of this very relevant recent country information. 26 In the second ground the appellant alleged that the Tribunal failed to consider his claim "on the basis of [his] political opinion against the Awami League Party as an independent claim". 27 In the particulars supporting this ground the appellant drew attention to para 43 of his migration agent's submission in which it was argued that: … b A person who holds (or is believed to hold) views antithetic to instruments of government may be regarded as an "enemy of the State". … 28 This submission was based on a passage in the judgment of Davies J in Minister for Immigration and Ethnic Affairs v Y (unreported, 15 May 1998) approved by the Full Court in V v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 355. The point made in those cases is that as a matter of law for a fear of being persecuted to be "by reason of" a person's political opinion it is enough that the person holds or is believed to hold views antithetic to instruments of government and is persecuted for that reason. It is unnecessary that the person be a member of a political party or that the person's opposition to the instruments of government be a matter of public knowledge. See also Tanji v Minister for Immigration & Multicultural Affairs [2001] FCA 1100 (Tamberlin J). 29 The primary judge held that neither ground was made out.

The primary judge's reasons 30 In relation to the first ground of review, the primary judge held (at [2]) that it was clear from the Tribunal's findings that the appellant's "claimed fear arising from membership of the BNP was properly addressed" and ground 1 was merely "an impermissible challenge to the findings of fact made by the Tribunal and discloses no jurisdictional error". 31 In relation to the second ground, the primary judge was also satisfied that the Tribunal had addressed the claim. His Honour pointed to paragraphs 36 and 37 of the Tribunal's reasons where the Tribunal said: 36 The Tribunal does not accept that the applicant was or will be harassed, threatened, harmed or targeted for harm by those he claims, including Awami League members/supporters, and/or the police, because of his membership or affiliation with the BNP or because of his BNP activities in either Bangladesh or in Australia, or because he reported a rape of his niece by an Awami League supporter and the case is still pending. The Tribunal does not accept that there is a real chance that the applicant will suffer harm amounting to serious harm, or a real risk he will suffer significant harm, in his country for these reasons as he claims if he returns to Bangladesh. 37 In the Tribunal's view there is no plausible evidence before it that the applicant has suffered persecution in Bangladesh, or that he has a real chance of suffering persecution there, from political opponents, Awami League members/supporters, the police or from anyone else, because of his political opinion or imputed political opinion, because he is a member of a particular social group, or for any other Convention reason, either now or in the reasonably foreseeable future, if he returns to Bangladesh.

Did the primary judge fall into error? 32 Section 414 of the Migration Act requires the Tribunal to "review" the decision of the Minister or his delegate. As the Minister put it, there is no doubt that the obligation to review the decision includes an obligation to review the appellant's claims. Consequently, "[t]o make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on". See Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 194 ALR 244 at [42] (Allsop J, Spender J agreeing at [1]). . Furthermore, the claim or claims and the component integers are mandatory considerations in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 at 39 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [73], [216]. 33 The primary judge's reasoning at [2] is ambiguous. It may reflect a misunderstanding of what the appellant was actually saying. The appellant acknowledged that the Tribunal found him to be a member of the party. He did not submit that it failed to deal with his "claimed fear arising from membership of the BNP". Rather, he submitted that it failed to deal with his claimed fear arising from his support for the BNP based on the recent country information (that the Bangladeshi Government was embarking on a cleansing operation against its opponents). This was a reference to a passage in a statement published on 4 January 2014 by the Asian Human Rights Commission. 34 The primary judge also stated (at [8]) that the Tribunal did not regard the country information provided by the appellant as reliable evidence. This reflects a misreading of the Tribunal's reasons. The Tribunal did not indicate that it considered any of the country information to be unreliable. It certainly made no finding to the effect that the information in question was not reliable. 35 Still, the appellant's complaint is without substance. 36 At [20] of its reasons the Tribunal expressly referred to this country information when summarising the written submissions and attached documents the appellant's representatives forwarded to the Tribunal after the hearing. At [24], in a passage to which the primary judge did not refer, the Tribunal said this: The Tribunal accepts that independent country information, including the country information referred to by the delegate, supports "in a general" way the appellant's claims that there is political violence and conflicts between opposing political parties in Bangladesh and that sometimes those with a political profile, including a local political profile are targeted for harm, including sometimes assaults and killings, by members of opposing political factions. The Tribunal accepts that in the recent past political violence has worsened in Bangladesh and that the security situation has further deteriorated. Clearly, however in relation to section 36(2)(a) the Tribunal must determine whether the applicant before it has a genuine fear founded upon a real chance of persecution for a Convention reason if he returns to his country … 37 The Tribunal then proceeded to assess whether the appellant's fear was genuine and whether he had a real chance of persecution for a Convention reason if he were to return to Bangladesh, finding against him on both counts. 38 While the passage at [24] did not explicitly refer to the evidence concerning "cleansing operations" or, more accurately "a cleansing mission", on a fair reading of the reasons the Tribunal plainly took the country information about this matter into account in assessing the appellant's claim to fear harm because of his support for the BNP. At [26] the Tribunal said, amongst other things, that: To the extent that the applicant is claiming that things will be worse for him in his country than they were before he left there because of the worsening security situation and the escalating political violence in Bangladesh the Tribunal does not accept this claim. (Emphasis added.) 39 The Tribunal did not accept this claim not because it did not consider the recent country information but because it did not believe the appellant's claim that he was a political activist. 40 A failure to expressly advert to the country information in question would not amount to a jurisdictional error. The Tribunal was not bound to comment on every item of material before it: NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10 ("NAHI") at [14]. 41 In any case, as the primary judge observed at [2] of his reasons, the weight to be given to country information is a matter for the Tribunal. As the Full Court put it in NAHI at [11], this is part of the Tribunal's fact-finding function. See also NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [81] (Young J, Gyles and Stone JJ agreeing at [1] and [2] respectively). The Tribunal was not bound to say why, if it be the case, it attributed less weight to the country information upon which the appellant relied: NAHI at [14]. 42 Accordingly, the first ground of appeal is not made out. 43 I now turn to the second ground. 44 I am not satisfied that the claim that the appellant feared harm because he was an opponent of the Awami League was independent of his claim to be a supporter and member of the BNP. 45 On the first page of their written submissions to the Tribunal dated 10 April 2014 the appellant's representatives characterised the appellant's case thus (without alteration): The applicant reports that he is a member and a supporter of the Bangladesh Nationalist Party. The applicant fears that he will be seriously harmed if he returns to Bangladesh for reasons explained in this statement and in particular due to his fear that: 1. It is submitted that the applicant is a person to whom Australia has protection obligations, as he has a well-founded fear of suffering persecution for convention reasons if he returned to Bangladesh for the cumulative reasons of: (a) Political Opinion : Holding and supporting the political ideologies of Bangladesh Nationalist Party ('BNP). 2. We further submit that given the current ongoing human rights problems and political instability involving well documented attacks on opponents of the current Awami League Government in Bangladesh, there is no meaningful option there of relocation or obtaining effective protection form the Bangladesh authorities. 46 This position is reflected throughout the document: see, in particular, [44]-[46] and [51]-[52]. 47 Nothing in the appellant's statement or statutory declaration suggests otherwise. 48 To the extent that the appellant claimed to fear harm as an opponent of the Awami League because of his political opinion, that claim was based on his support for the BNP. There was no independent claim. 49 In any event, to the extent that the appellant was drawing a distinction between the chance or risk of harm because of his political opinion as distinct from his political activities, it is clear from the Tribunal's reasons (especially at [36]-[37]), based on its adverse view of the appellant's credit, that it did not believe the appellant to be at real risk of harm from the Awami League or its supporters or any political opponents because of his political opinions per se. 50 The Tribunal took the view that only political activists were at real risk of harm and was not persuaded by the appellant's statements or the material submitted on his behalf that the appellant was an activist. That conclusion was open to the Tribunal on the basis of the appellant's own evidence, summarised at [33] of the Tribunal's reasons, that since 1998 he had been too busy with his business to attend BNP meetings, that he could not remember doing anything after 1998, and that, in the Tribunal's words, "he is not associated with the BNP because he is too busy with his work".

Other matters 51 At the hearing the appellant claimed that, since the primary judge dismissed his application, he had received "another document from [his] country where [his] name is there for another two fraudulent cases in [his] name, in the charge sheet". These comments did not address a ground of appeal and invited the Court to review the merits of his visa application, a course which is not open as a matter of law. 52 The appellant also quarrelled with the Tribunal's conclusions, querying how it could possibly have reached them. He described the decision as "bullshit". These submissions, too, similarly addressed the merits of the decision. 53 The appellant submitted that the Tribunal could have made inquiries of its own which would have supported what he was saying. 54 This complaint was not the subject of a ground of appeal or a ground of review in the court below. If the appellant seriously wished to agitate it, he would require leave to do so. For the following reasons I would decline to grant leave. 55 While the Tribunal has the power to seek further information (Migration Act, s 424), the Tribunal's statutory obligation is to conduct a review. The Tribunal has no general duty to undertake its own inquiries: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 ("SZIAI") at [1]. In SZIAI at [25], the High Court countenanced the possibility that "a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review". But this is not such a case. The appellant told the Court that he had not asked the Tribunal to make any inquiry of its own, although he was represented throughout the Tribunal proceeding. He did not identify what inquiries the Tribunal should have made. Nor did he indicate of whom inquiries should be made. Moreover, he did not point to any critical fact to which the suggested inquiries would relate. In the circumstances, a ground of appeal based on a failure by the Tribunal to make inquiries of its own would be bound to fail.

Conclusion 56 The appeal must be dismissed. There is no reason why costs should not follow the event. There will be orders accordingly. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.