FEDERAL COURT OF AUSTRALIA

SZATR v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1588

MIGRATION – no point of principle

Migration Act 1958 (Cth)

SZATR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1355 of 2004

MOORE J

9 DECEMBER 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant pay the respondent's costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This judgment concerns an appeal from a decision of a Federal Magistrate of 1 September 2004 dismissing an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review (seeking the issue of constitutional writs) of a decision of the Refugee Review Tribunal ("the Tribunal").  The appellant applied for a protection visa on 17 October 2001, claiming to be a refugee.  A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused that application on 22 November 2001.  The appellant then applied to the Tribunal for review of that decision.  The Tribunal affirmed the decision of the delegate on 5 May 2003.

Background

2                     The following is a brief account of the appellant's claims taken from the Tribunal's reasons for decision.  The appellant is a Muslim Bengali and was born in Dhaka, Bangladesh.  He left Bangladesh in 1993 to study.  Before arriving in Australia on 24 February 1994, he studied at the Central Institute of Technology in Wellington, New Zealand. 

3                     He fears being harmed and killed by people involved in his brother's murder, political activists and government forces if he were to return to Bangladesh.  His brother was murdered in August 1995 while trying to help someone else involved in a political fight between rival political gangs.  The persons who killed his brother were Bangladesh Nationalist Party ("BNP") terrorists and the person his brother helped was an Awami League ("AL") supporter.  His family attempted to have the police investigate the murder, however no arrests have been made because of political interference and the murderers are still free.  Because of the political connections of those involved, threats have been made against his father and family to drop the matter, which they will not do.  He does not believe the Bangladeshi authorities will protect him because "Bangladesh is a violent, corrupt society" and the authorities could not protect his brother.

The Tribunal's decision

4                     The appellant claimed before the Tribunal that he had a well-founded fear of persecution on the basis of an imputed political opinion and membership of a social group. 

5                     The Tribunal had before it an article published in the Aporadii Jogot in September 1995 and translated into English (set out in the Tribunal's reasons for decision) and an article published in the "Bangladesh Observer" on 29 August 1995.  Both these articles concerned the murder of the appellant's brother.  The Tribunal accepted the articles were authentic, the appellant's brother was murdered and the circumstances of his brother's death as described by the appellant.  The Tribunal noted that while the appellant said that his brother's murder case received a high level of publicity, the appellant conceded that there had not been any reporting of the case since 1995.

6                     The appellant forwarded to the Tribunal a letter dated 23 February 2003, purportedly from a Bangladeshi lawyer, concerning court proceedings brought against those accused of murdering the appellant's brother.  The letter indicated that those accused of murdering the appellant's brother had threatened the appellant's father (the plaintiff in the court proceedings) and his family members. 

7                     As noted above, the Tribunal accepted that the appellant's brother was murdered but concluded that:

there would be no reason for the perpetrators to be harassing the [appellant's] family, particularly given that there were no family members (apart from the murdered brother) at the scene of the crime and so their testimony would not be credible [relevant].  The Tribunal finds the manner in which the [appellant] changed the reasons for the alleged harassment of the family, that is from having the family drop the matter to having them testify that the perpetrators are innocent, as evidence of the fact that the [appellant's] claims are a fabrication and that the [appellant] has arranged for a lawyer's letter to fraudulently state this.  In making this finding, the Tribunal notes the independent evidence, cited above, as to the ease with which it is possible to arrange the writing of such letters by lawyers.  In the light of this evidence, and in the light of the implausibility of the [appellant's] claims, the Tribunal finds the letter to have been either fabricated by person or persons unknown, or to have been written by the lawyer merely to support the [appellant's] refugee application.  Indeed, the Tribunal is strengthened in its finding with regard to this by the fact that in the almost eight years since the murder there is no tangible evidence presented, apart from the lawyer's letter, that such threats are occurring nor that the press is still pursuing the case as argued.

The Tribunal accepts that the [appellant] has presented to Australian doctors having panic attacks and depression.  However, the Tribunal finds that these symptoms are consistent with his sadness at his brother's murder and his concern as to the outcome of his visa application.  The Tribunal finds it does not provide evidence that his fears with regard to his claims are well-founded.  Similarly, the Tribunal similarly does not find that any medical conditions his parents might have, or have had in the past, provide evidence that the [appellant's] fears with regard to his claims are well-founded.

(emphasis added)

The Federal Magistrate's decision

8                     The Federal Magistrate noted that the appellant claimed before the Tribunal a well-founded fear of persecution for the Convention reasons of imputed political opinion and membership of a social group on the basis that the appellant's brother was killed while trying to help someone involved in a fight between political gangs.  After summarising the claims of the appellant before the Tribunal, the Federal Magistrate noted that the imputed political opinion:

arose because the friend whose life the brother had saved was an [AL] supporter and the clash was with BNP supporters.  The brother would be imputed with an [AL] association and that would also be imputed to the applicant.

His Honour also noted that the appellant claimed to belong to a social group related to his membership of his deceased brother's family.  His Honour then set out the Tribunal's reasons for decision as set out at [7] above. 

9                     Referring to the grounds for review, his Honour noted that the appellant, through a solicitor then representing him, raised the issue of whether the Tribunal constructively failed to exercise its jurisdiction under the Act as:

The [Tribunal] was required to make a finding whether or not the [appellant] would be imputed by the BNP to have an adverse political opinion, as a result of his brother's opposition to, and subsequent murder by, BNP activists in August 1995.  The [Tribunal] failed to make a finding one way or the other and as such could not have reached the level of satisfaction required by law.

The appellant appeared in person before the Federal Magistrate and it does not appear that this argument was developed further before his Honour.  His Honour observed that the essential finding of the Tribunal was that the appellant:

did not have a well-founded fear of persecution for a Convention reason should he return to Bangladesh and the reason that he did not have such a fear was that his claims that he would be subject to persecution within the meaning of s 91 [of the Act] was not believed.  If there was no real subjective fear then it matters not whether the allegation of such fear arose out of imputed political opinion or otherwise. 

10                  His Honour dismissed the application.

The appeal

11                  The appellant represented himself in the appeal.  The notice of appeal was substantially unintelligible as was an amended notice of appeal.  While the appellant indicated that he had signed the amended notice of appeal, he was not aware of its contents.  When asked to articulate the error of the Tribunal, the appellant indicated that it had failed to fully investigate his claims and should have sought further material about circumstances in Bangladesh.

12                  The reasons for decision of the Tribunal are not particularly satisfactory in the sense that it is difficult to follow the reasoning of the Tribunal.  However it is clear that the Tribunal accepted that the appellant's brother had been murdered in 1995 and appears to have accepted that there was a political dimension to the murder.  It appears, however, that the Tribunal did not accept that the appellant's family had been harassed since the murder.  The Tribunal took this approach because of what it perceived to be inconsistencies in the explanation of the appellant as to why the harassment had taken place. 

13                  The ground raised before the Federal Magistrate was narrowly cast.  As noted above, it was that the appellant had alleged a fear of persecution because of imputed political opinion, and the Tribunal failed to make any finding about whether the appellant would have a political opinion imputed to him with the result that he was at risk of harm.  The Federal Magistrate dealt with this contention apparently on the footing that the Tribunal had determined the appellant did not have a subjective fear of persecution.  For my part, I am not entirely confident that that is the way the Tribunal dealt with the appellant's claims though I must accept that the Tribunal's reasons are expressed in a way that makes it difficult to discern precisely what it decided.

14                  When addressing the appellant's state of mind, the Tribunal noted (in the second paragraph quoted at [7] above) that existing symptoms (panic attacks and depression) could not be taken to evidence an existing well-founded fear but rather were symptoms consistent with sadness at his brother's murder and concern as to the outcome of his visa application.  Even accepting those remarks as findings of fact about the appellant's present state of mind, it scarcely deals with the issue raised by the Convention as to whether an asylum seeker has an existing well-founded fear of persecution.

15                  However, as noted earlier, the Tribunal rejected the appellant's claim that his family had been harassed since his brother's death.  That claim appeared to underpin the whole of the appellant's claim for a protection visa.  His basic claim was that his brother was murdered, it had a political dimension and since then his family had been harassed.  Were he to return to Bangladesh he would similarly be harassed and the harassment would be of a character which would constitute persecution.  By rejecting the appellant's claim that his family had been harassed, the Tribunal was rejecting a critical element in the appellant's claim as a whole.  The Federal Magistrate's ultimate conclusion was correct.  That is, a case had not been made out for the grant of constitutional writs.

16                  Accordingly I would dismiss the appeal with costs.

Associate:

Dated:              9 December 2004