FEDERAL COURT OF AUSTRALIA

SZBGC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1168

MIGRATION – appeal from Federal Magistrates Court decision dismissing application to Refugee Review Tribunal for review of a decision of the Minister not to grant a protection visa – whether there was constructive failure to exercise jurisdiction by the Tribunal not distinguishing between participation in peaceful street processions and violent demonstrations – whether Tribunal asked itself the wrong question in determining whether the appellant could avoid harm by relocating within Bangladesh and failed to consider the practicalities and reasonableness of relocation.

Judiciary Act 1903 (Cth), s39B

Migration Act 1958 (Cth), s 424A

NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 – referred to

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 – referred to

SZBEU v MIMIA [2005] FMCA 642 – referred to

SZBGC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

NSD 475 OF 2005

EMMETT J

20 SEPTEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal be joined as the second respondent.
2. The appeal be dismissed.
3. The appellant pay the first respondent’s costs of the appeal.

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

EMMETT J

1                     Before the Court is an appeal from a decision of the Federal Magistrates Court, dismissing an application by the appellant for a review of a decision of the Refugee Review Tribunal (‘the Tribunal’), affirming the decision of a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), refusing the grant to him of a protection visa. 

2                     The appeal was argued before Hill J on 30 May 2005, when his Honour reserved his decision.  His Honour had completed a written judgment before his death and it was to be delivered on 24 August 2005.  Because of his Honour’s death, judgment was not delivered on that day.

3                     On 7 September 2005, the parties appeared before me as List Judge, with a view to indicating their wishes as to how the matter should now proceed.  All parties agreed that I might dispose of the matter upon the materials that were before Hill J and without further hearing or argument.  I have examined the papers and have studied the reasons prepared by his Honour.  I consider that, in the light of the materials that I have examined, the proceedings should be disposed of in the way proposed by Hill J for his Honour’s reasons.  What follows hereafter constitute Hill J’s reasons, which I adopt as my own. 

4                     The Tribunal was of the view that the appellant was not a person to whom Australia had protection obligations.  Particularly, it was not satisfied that the appellant fell within the meaning of “refugee” in the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).  A refugee is defined under Article 1A(2) of the Convention as a person who:

“…owing to 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 …”.

5                     The appellant is a Muslim citizen of Bangladesh who arrived in Australia on 8 October 2001.  Shortly thereafter, the appellant applied for a protection visa on the basis of politically based persecution.  The application for a protection visa was lodged on 20 November 2001.  On 15 January 2002, a delegate of the Minister wrote to the appellant.  That letter set out, inter alia, extracts of independent country information, which the appellant was advised could be taken into account in determining his application and informed the appellant of his entitlement to respond to the information contained therein.  The appellant did, in fact, through an adviser, respond to that information on 25 February 2002.

6                     The appellant’s application for a protection visa was refused by a delegate of the Minister on 23 February 2002. The appellant then applied to the Tribunal for review of that decision.

THE APPLICATION BEFORE THE TRIBUNAL

7                     The application to the Tribunal for review of the delegate’s decision was made on 27 March 2002.  The Tribunal hearing was conducted on 26 May 2003 and the appellant gave oral evidence at that hearing.  The Tribunal summarised the appellant’s claims before it as follows:

The [appellant] claims that he comes from a politically oriented family.  His father is an active member of the Awami League and his brother, who was a leading activist with the Awami League, was murdered by BNP party supporters in July 1999.  His family became targets of the BNP and his surviving older brother has moved to another part of the country.

Even though the Awami League was in power … the state authorities did little to apprehend the perpetrators.  Some people were arrested however … the real culprit escaped arrest.

The [appellant] became involved in politics in 2000.  He joined the Jubo League of the Awami League [the youth wing of the party] and says he became a leading activist.  Principal Matiur Rahman (President of the District Committee of the Awami League) provided the [appellant] with co-operation and help.

… within a short time he became a well known person and a leading activist in the political arena.  In January 2001 a conference was held in Mymensingh Town Hall [in the city in which the appellant was born and educated, 70 km north of Dhaka] to elect a new district committee for the Mymensingh Jubo League.  He was elected on the committee as executive member.

After this … he became more active in politics and as a result the opposing political groups, that is, BNP and the Jamaat I Islam supporters became hostile to the [appellant] and he was targeted and attacked indiscriminately by those supporters.

National elections were due to be held on 1 October 2001.  During the election campaign the [appellant] worked for the Awami League candidate for the constituency.

On … 9 September 2001 the [appellant] was involved in a campaign procession when BNP activists attacked the procession.  The [appellant] was punched, kicked, spat on and threatened with further violence.  BNP activists told the [appellant] that he should leave the region.  The [appellant] was admitted to a clinic for 3 days.

On 15 September the [appellant] was involved in a procession demonstrating against a pro Taliban procession held by BNP and Jamaat supporters.  A street fight broke out when the Awami League activists set fire to a photograph of Osama bin Laden.  Many activists were injured and arrested including the [appellant].  The [appellant] was released through payment of a bribe.

On 17 September 2001 the [appellant’s] father was kidnapped beaten and then released.  The incident was reported to the police but no one was arrested.

Before the abovementioned turmoil took place the [appellant] and his parents applied for visit visas to Australia.  As they were required to lodge security bonds for their visas it was impossible for all members of the family to travel.  The [appellant’s] parents insisted that the [appellant] apply for a visa and they raised the money for the bond.  The [appellant] obtained a visa in August 2001.

The [appellant] decided to leave Bangladesh after the BNP and its coalition won power.  The [appellant] claims that if he returns to his home he will be persecuted.

8                     At the Tribunal hearing, the appellant was pressed to give details about his political activities in support of the Jubo League.  The appellant described his role for that party as being one of campaigning for and promoting the ideals of that party to members of the public, pointing out the faults of the Bangladesh National Party (“BNP”) and arranging public processions. 

9                     The Tribunal considered, and put to the appellant, that the account he provided of his political activities was highly generalised and lacking in specific details; that he was too young and inexperienced to be a middle ranking committee member of the Jubo League and that he appeared to have less than would be expected knowledge about the Jubo League:

“The [appellant] knew the names of the local District Committee leaders but could not give the names of national leaders (other than 1 leader), did not know when the Jubo League was founded or the name of its founder.  He had little knowledge of branch organisation or how the national organisation operated.”

10                  It was put to the appellant that, on the basis of independent country information, the appellant could continue to be a politically active member of the Awami League without being subjected to violence.  The appellant claimed that due to his particular family background and as a member of that party, violence could not be avoided.  The Tribunal also put to the appellant that he did not have a high profile within the party and would be safe if he relocated within Bangladesh to a city in which he was less well known.  The appellant claimed that the BNP would find him wherever he went due to the events surrounding the death of his brother. 

11                  The Tribunal accepted that the appellant and his family were supporters of the Awami League and that the appellant had joined the youth wing of the Awami League, but not that he was an office bearer or a leading and well known activist.  The Tribunal said that, even accepting that the appellant’s allegation that his brother was killed by BNP activists, there was no evidence that the harm was a result of persecutory conduct, as violence and attacks by party members upon other party members had become a routine feature of politics in Bangladesh.  The Tribunal held that in any case, there was no evidence that the current BNP Government condones the use of violence in political demonstrations and that the State police had investigated the appellant’s brother’s death and made arrests in relation to it. 

12                  In light of country information indicating that deaths in street processions were not uncommon, the Tribunal rejected as implausible the appellant’s claim that the brother’s killing in a street clash with the BNP had made the appellant a target for harm.  The Tribunal was satisfied that any injury suffered by the appellant at political demonstrations was not due to persecution but because such violence was inherent in the nature of such activity.  The Tribunal held: ‘There is no evidence that he was injured as a result of systematic and discriminatory conduct on the part of the BNP or the BNP government’.  The Tribunal also rejected the appellant’s claim that, before the 2001 election, his father had been kidnapped and beaten for a Convention related reason. 

13                  Having considered the appellant’s claims in his protection visa application, review application, oral and documentary evidence, written submissions provided by his advisor and independent country information, the Tribunal concluded that in all the circumstances of the case, it would be reasonable for the appellant to relocate elsewhere within Bangladesh where he would be less well known if he did not wish to return to the locality of his former residence.  The Tribunal did not accept the appellant’s claim that he would be found and harmed, even upon relocation.  Accordingly, the Tribunal affirmed the decision of the Minister’s delegate not to grant the appellant a protection visa.

THE DECISION OF THE FEDERAL MAGISTRATES COURT

14                  On 18 August 2003, the appellant filed an application with the Federal Magistrates Court seeking judicial review of the Tribunal’s decision pursuant to s 39B of the Judiciary Act 1903 (Cth).  To succeed before the Federal Magistrate, the appellant needed to show that the Tribunal had made a jurisdictional error such that its decision’, being no decision at all, was not a privative clause decision (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). 

15                  The appellant was not represented before the Federal Magistrate and his application contained no particulars of the claims made.  The Federal Magistrate ordered the appellant to file an amended application and the appellant complied with this order on 24 February 2004.  The amended application contained three grounds.  The first was that the Tribunal failed to accord procedural fairness to the appellant.  The second was that the Tribunal did not follow proper procedures.  The third ground was that, in making its determination that the appellant would be afforded adequate protection by the state upon his return to Bangladesh, the Tribunal fell into jurisdictional error.

16                  The claim that the appellant was denied procedural fairness was based upon the alleged failure of the Tribunal to provide to the appellant, all adverse country information forming a part of its reasons for decision.  The claim was rejected by the Magistrate, in light of both the Tribunal’s reasons, which indicated that the appellant was informed of this information (and, in fact, responded to it) by the letter from the delegate mentioned above, and the provisions of s 424A(3)(a) of the Migration Act 1958 (Cth) (‘the Act’), which exempts the Tribunal from providing to an applicant information about a class of persons of which the applicant or other person is a member where that information is not specifically about the applicant or another person.  

17                  In respect of the second ground, the particulars of which alleged that the Tribunal had not dealt with the serious persecution that the appellant would face if returned to Bangladesh, the Federal Magistrate held:

“What is clear from the document and from what the applicant said to me in the hearing is that no challenge was raised to the finding by the Tribunal that he could relocate.  This seems to me to be fatal to the [appellant’s] claim because no jurisdictional error is alleged in respect of it and it is an answer to his claim for asylum.  The application can and should be dismissed on this basis alone …”.

18                  In respect of the other matters raised by the appellant, both in his application and orally, the Federal Magistrate held that they displayed no jurisdictional error on the part of the Tribunal, or were in regard to factual findings and as such involved no jurisdictional error.  The appellant’s application was thus dismissed in a decision handed down on 22 July 2003.

THE CASE BEFORE THE FEDERAL COURT

19                  The appellant’s appeal from the decision of the Federal Magistrates Court was filed in this Court on 29 March 2005.  Since that date, the appellant had obtained legal representation and, at the hearing on 30 May 2005, counsel for the appellant sought leave to amend the original application that had been filed in the Federal Magistrates Court.  Leave to amend the notice of appeal was also sought. 

20                  The amended notice of appeal contained three grounds:

‘Ground 1: The Tribunal constructively failed to exercise jurisdiction in relation to the appellant’s claims that he (and his brother) were the victims of political violence.

Ground 2: The Tribunal failed to give consideration to how, in a practical sense, the appellant could reasonably be expected to relocate in Bangladesh.

Ground 3: The Tribunal asked itself the wrong question when considering relocation by the appellant.’

21                  Leave was not opposed by counsel for the Minister and was granted, except to the extent that the amendments related to the question of whether, as implied in the reasons for judgment of the Federal Magistrate, the appellant had abandoned any challenge to the Tribunal’s findings that he was able to relocate within Bangladesh to avoid any harm to him from members of the BNP and whether the question of relocation had been put to the appellant at the Tribunal hearing.  This question was deferred until 1 August 2005 for further consideration, following the obtaining by counsel for the appellant of the transcript of Tribunal proceedings.  Thus, except for the grounds of appeal concerning the issue of relocation, the case proceeded to hearing. 

CONSTRUCTIVE FAILURE TO EXERCISE JURISDICTION

22                  Counsel for the appellant submitted that the reasoning behind the Tribunal’s decision that the violence that the appellant might be subjected to upon a return to Bangladesh was common and routine and thus not Convention based was incorrect and illogical and constituted jurisdictional error.  Relying on a judgment of Driver FM in the Federal Magistrates Court, counsel submitted that there was a marked distinction between street demonstrations ‘engaged in with the intention of provoking a physical confrontation with one’s political opponents’ and a ‘peaceful procession that may attract violence from malicious political opponents’ (see SZBEU v MIMIA [2005] FMCA 642).  In not making a finding as to which type of demonstrations the appellant had participated in, counsel for the appellant submitted that the Tribunal had constructively failed to exercise its jurisdiction.  Further, counsel submitted that the Tribunal had assessed the appellant’s complaints based on modes of political behaviour specific to Bangladesh, the very country from which refuge was sought and that this was an incorrect and perverse approach. 

23                  It was further submitted that the Tribunal’s finding, that adequate state protection would be afforded to the appellant, was made only in relation to street procession violence from BNP party members.  Although the Tribunal found that the BNP did not condone such violence, no finding was made in respect of whether the BNP Government could provide effective protection against violence caused by BNP supporters that were non-state actors. 

24                  However, those submissions do not demonstrate jurisdictional error.  The distinction sought to be drawn can no doubt be made, but the failure to do so in this case caused no jurisdictional error.  Rather, the submission seeks to engage the Court in a review of factual matters.  Further, the question of whether lack of logicality may in a relevant case involve jurisdictional error does not arise in this case. 

RELOCATION

25                  Counsel for the appellant submitted that, in determining that, in any event, the appellant could avoid harm by relocating within Bangladesh, the Tribunal asked itself the wrong question and failed to give consideration to how such a relocation could practically occur and whether it would be reasonable in the circumstances of the appellant’s case.  In support of the submission, counsel for the appellant relied on a decision of a Full Court of this Court in NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 in which Branson J held at [10]-[22]:

“If the putative refugee could reasonably have re-located within the country of nationality, rather than fled that country, he or she will fail the first element of the Convention definition of a refugee…In Randhawa Black CJ, with whose reasons for judgment Whitlam J agreed, said at 442-443: ‘…If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person’s fear of persecution in relation to that country as a whole is well-founded’…

However, the summary way in which the Tribunal dealt with the issue of relocation … causes me to conclude that the Tribunal did not apply the right test when it concluded that it was satisfied that … the appellant would be able to relocate…The Tribunal did not … give consideration to the practical realities facing the appellant … should she seek to relocate within Fiji… The Tribunal was required to give consideration to how, in a practical sense, the appellant could reasonably be expected to relocate within Fiji.”

26                  No doubt, in a relevant case the summary way in which the Tribunal addressed relocation could involve the Tribunal failing to apply the correct test.  Whether this is the case must depend on the circumstances and a reading of the Tribunal’s reasons as a whole.  Here the Tribunal found relocation to be reasonably practical.  That is a factual finding for the Tribunal and not this Court.  In making it, the Tribunal was not required as a separate matter to elaborate upon how relocation could practically occur.  It considered relocation to be reasonable in the circumstances of the case.  That conclusion involved no jurisdictional error.  There is nothing in the Tribunal’s reasons to suggest it applied the wrong test.

RELOCATION AND NATURAL JUSTICE

27                  As earlier indicated, counsel for the appellant asked the Court to defer consideration of a submission that the Tribunal had denied to the appellant natural justice, by failing to put relocation as a possible option to the appellant during the course of the Tribunal hearing, pending consideration of the transcript of that hearing.  The appellant did not file copies of the transcript with further submissions referring to the transcript, as was suggested would need to be the case were the matter to be argued.  Accordingly, leave to amend the notice of appeal in respect of whether the appellant had abandoned any challenge to the Tribunal’s findings on relocation is refused.  There is no error to be found in the reasons of the Federal Magistrate’s Court on that matter.  This being the case, it is unnecessary to consider other grounds of appeal sought to be raised, when they go only to alternative reasons of the Tribunal for not considering the appellant a refugee. 

Associate:

Dated:              21 September 2005