FEDERAL COURT OF AUSTRALIA

S1509 of 2003 v Minister for Immigration & Multicultural Affairs

[2006] FCA 1487

S1509 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR

NSD1496 OF 2006

EMMETT J

31 OCTOBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.          The appeal be dismissed.

2.          The appellant pay the first respondent’s costs of the appeal fixed in the sum of $1500.

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

REASONS FOR JUDGMENT

1                     The appellant is a citizen of Bangladesh.  He arrived in Australia on 18 February 1995.  On 20 October 1995, he lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’).  On 26 May 1997, a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), refused to grant a protection visa.  On 24 June 1997, the appellant sought review of that decision by the second respondent, the Refugee Review Tribunal (‘the Tribunal’).  On 6 October 1998, the Tribunal affirmed the decision not to grant a protection visa.

2                     In 1999, the appellant became a party to a proceeding in the High Court of Australia in respect of which judgment was ultimately given in the name of Muin v Refugee Review Tribunal [2002] HCA 30.  In due course, the appellant commenced his own proceeding in the High Court of Australia.  That proceeding was remitted to the Federal Court pursuant to orders made by Gaudron J on 25 November 2002.  On 20 February 2004, I refused orders nisi for the reasons that I then gave (see Applicant s1174 of 2003 v Refugee Review Tribunal [2004] FCA 289).  In short, I concluded that there was no arguable case established by the material relied on by the appellant that there had been reviewable error on the part of the Tribunal.

3                     However, since that decision refusing orders nisi did not resolve the question on a final basis, the appellant commenced a fresh proceeding seeking judicial review of the Tribunal’s decision by the Federal Magistrates Court.  On 25 July 2006, Nicholls FM ordered that the proceeding be dismissed with costs.  The appellant has now appealed to this Court from the orders of the Federal Magistrates Court.  The appellant has filed an outline of submissions pursuant to directions given by the Court.  The appellant did not wish to add to those submissions when the appeal was called on for hearing today.

4                     The Tribunal recorded the appellant’s claims that, if he returns to Bangladesh, he will be persecuted because of his Jatiya Party activities.  He claimed that there are outstanding charges against him in Bangladesh.  He also claimed that he would be targeted by supporters of the Bangladesh National Party (‘BNP’) in revenge for the killing by the police of BNP supporters in an incident which occurred in 1989.  The Tribunal accepted that the appellant was involved in the Jatiya Party from the late 1980s until he left Bangladesh in 1992.  It also accepted that, following the fall of the Ershad government in December 1990, the appellant participated in demonstrations leading up to, and following, the general elections in 1991.  Finally, the Tribunal also accepted that the appellant is currently an active member of the Jatiya Party in Australia. 

5                     However, the Tribunal considered that the appellant did not demonstrate a high level of knowledge about the Jatiya Party.  It was of the view that his lack of knowledge about the history and philosophy of that party, as well as his lack of knowledge about the current make up of the Bangladeshi parliament and the number of seats held by his party, indicated that he was not a prominent member of the party when he was in Bangladesh.  Further, while accepting that the appellant was a member of the Jatiya Party in Bangladesh and that he had participated in demonstrations following the fall of the Ershad government, the Tribunal did not accept that any charges, false or otherwise, had been laid against the appellant.  Three reasons were given for that conclusion. 

6                     First, the appellant found out about the alleged charges, according to his evidence, in December 1991.  However, he did not leave Bangladesh until February 1992.  The Tribunal referred to inconsistencies in the appellant’s evidence concerning his whereabouts and activities in Bangladesh between December 1991 and February 1992.  The Tribunal concluded that, if the appellant was of any interest to the authorities between December 1991 and February 1992, there was ample opportunity for them to detain him.  He was not, however, detained. 

7                     Secondly, the Tribunal referred to the fact that the appellant’s passport was issued in August 1991.  The Tribunal considered, therefore, that the appellant intended to leave Bangladesh from, at the latest, August 1991, well prior to the time when he claims to have found out about the alleged charges in December 1991. 

8                     The third matter relied upon by the Tribunal was the fact that, although there are allegedly charges against the appellant, he returned to Bangladesh at least three times after he left in February 1992, before coming to Australia.  He first returned to Bangladesh in May 1992 from Korea.  He said that he did not like the weather or the food in Korea.  He then returned to Bangladesh from India in 1993 and 1994, in order to obtain Indian visas.  The Tribunal considered that the appellant’s voluntary return to Bangladesh on at least three occasions indicated that he did not have any fear of the Bangladeshi authorities.  The Tribunal considered it implausible that the appellant would have been able to avoid arrest on three different occasions by paying bribes, as he claimed. 

9                     Having given those three reasons for concluding that there were no false charges against the appellant, the Tribunal then referred to documents provided by the appellant, which he said supported his claims.  The Tribunal accepted independent evidence that there was a high level of document fraud in Bangladesh and that fraudulent documents are able to be obtained with the assistance of the police.  The Tribunal records in its reasons that the appellant had said that his older brother had obtained the documents about the charges.  The Tribunal put to the appellant its information indicating that there was a high level of document fraud in Bangladesh, with fraudulent documents able to be obtained with the assistance of the police.  The appellant’s response was that he did not know anything about that.  In the circumstances, the Tribunal did not accept the documents provided by the appellant as evidence that there were charges against him. 

10                  Next, the Tribunal dealt with the appellant’s claims that he would be targeted by BNP activities because of an incident in which two BNP activists were killed by the police in 1989.  He claimed that other Jatiya Party activists had been killed because of those incidents.  The Tribunal accepted that there was an incident in 1989, such as the one described by the appellant.  It further accepted that the appellant has a genuine subjective fear of being targeted by BNP activists seeking revenge for the incident. 

11                  However, the Tribunal concluded that, on the material before it, any harm that might come to the appellant from BNP activists was not for any reason of his political opinion or any other Convention reason.  Rather, the reason for the appellant being targeted by BNP activists was because of their desire to seek revenge for the deaths of their colleagues.  It was not, in any way, because of any political opinion of the appellant, either actual or imputed.  In summary, the Tribunal did not accept that the appellant is the subject of outstanding charges in Bangladesh because of his involvement in the Jatiya Party and did not accept that, if he were to be harmed by BNP supporters, that would be because of his political opinions or for any other Convention reason. 

12                  In its reasons for its decision, the Federal Magistrates Court summarised those conclusions of the Tribunal.  The amended application in the Federal Magistrates Court raised two grounds.  The first is that the Tribunal denied the appellant procedural fairness.  The second is that the Tribunal failed to comply with the requirements of s 424A of the Act.  The particulars of the first ground centred on how the Tribunal was said to have dealt with the documents provided by the appellant to the Tribunal to show that false charges had been made against him.  The primary judge analysed that complaint as having two limbs. 

13                  The first was the finding by the Tribunal that the documents were either fraudulently produced, or written, to assist the appellant in making his claims in Australia.  The second is that the Tribunal found that the documents were fraudulent, without conducting any proper investigation or inquiries specifically relating to those documents and immediately rejected the documents as fraudulent, on the basis that it had country information before it which said that they were likely to be false.  His Honour considered that the Tribunal did not make an express finding that the particular documents had been forged or fraudulently obtained. Rather, the Tribunal simply did not accept that the documents provided evidence that there were charges against the appellant.

14                  I have already outlined the reasoning of the Tribunal in dealing with the false charges.  The primary judge observed that, while the Tribunal accepted that the appellant had been a member of the Jatiya Party in Bangladesh and had participated in demonstrations, it did not accept that any charges, false or otherwise, had been made against him.  The Tribunal then gave the three reasons to which I have referred.  The rejection of the claim that false charges had been made against him was clearly made on the basis of information not related to the documents, according to the primary judge’s reasoning.

15                  In any event, as his Honour observed, the issue of the authenticity of the documents was raised by the Tribunal with the appellant at the hearing.  The Tribunal put to him that it had information indicating that there was a high level of document fraud in Bangladesh and he simply responded he did not know anything about it.  His Honour found that, in the circumstances, the appellant was put on notice of that issue at the hearing.  Between the date of the hearing, on 23 July 1998, and the making of the Tribunal’s decision, on 6 October 1998, the appellant had the opportunity to make any further submissions or to provide any other evidence in relation to the issue if he wished.

16                  Indeed, the appellant was expressly given the opportunity to provide further material in support of his claims, consisting of a letter that he was hoping to receive from Bangladesh.  He subsequently wrote to the Tribunal on 10 September 1998, informing the Tribunal as to the progress of his obtaining such a letter.  Ultimately, there was no further communication with the Tribunal.  The point of the matter, however, is that there was ample opportunity for the appellant to raise the question of the authenticity of the documents if he wished. 

17                  Finally, his Honour observed that the Tribunal had no duty to inquire as to the authenticity of the documents.  Nothing was pointed to which it could be said gave rise to any obligation on the part of the Tribunal to engage in any further inquiry.

18                  The Tribunal’s conclusion concerning the false charges issue was based on the three matters to which I have referred.  Each of those matters was discussed with the appellant at the hearing and the appellant had the opportunity to put any explanations that he wished in relation to those matters. 

19                  The appellant’s complaint that the Tribunal failed to comply with its statutory requirements under s 424A of the Act is misconceived.  Section 424A was not enacted until after the Tribunal’s decision had been made. 

20                  In written submissions made to the primary judge, the appellant also complained that the Tribunal’s decision was contradictory, in that it accepted that he had been involved with the Jatiya Party and that there was a genuine, subjective fear of being targeted by BNP activists, who would seek revenge for the incident that occurred in 1989.

21                  The primary judge could see no contradiction in what the Tribunal had done.  It was open to the Tribunal to find that the incident described by the appellant as having occurred in 1989 had, in fact, occurred.  However, it was also open to the Tribunal to find that the incident could give rise to the appellant having a genuine, subjective fear of being targeted by BNP activists and, at the same time, to conclude that such targeting would not be for reasons of the appellant’s political opinion but because the activists were seeking revenge for the deaths of their colleagues.  His Honour observed that the Tribunal clearly addressed its mind to the relevant questions, namely whether or not the appellant feared persecution for a Convention reason.  His Honour considered that it was open to the Tribunal to find that there was no Convention nexus with the genuine, subjective fear held by the appellant. 

22                  Three grounds of appeal are contained in the notice of appeal to this Court, filed on 8 August 2006.  The first is that the Tribunal constructively failed to exercise its jurisdiction by reaching a conclusion concerning the documents, without providing to the appellant an opportunity to respond to the possibility of drawing a negative inference, and giving the appellant the opportunity to respond to that negative inference.  However, as I have said, it is clear on the face of the Tribunal’s reasons that the appellant was told by the Tribunal that it had information indicating that there was a high level of document fraud in Bangladesh, with fraudulent documents able to be obtained from the police.  The primary judge correctly found that the appellant had been made aware of the issue and had had the opportunity to provide further material if he wished. 

23                  The second ground is that the Tribunal acted in excess of its jurisdiction, in that there was no evidence to support its finding that the appellant had no fear of persecution in Bangladesh.  That is not, in fact, what the Tribunal found.  As I have said, it accepted that the appellant had a genuine, subjective fear of being targeted by BNP activists.  However, the Tribunal did not accept that that fear of persecution was for a Convention reason. The Tribunal clearly addressed its mind to the relevant question, as the primary judge correctly pointed out. 

24                  The third ground is that the Tribunal failed to ‘realise the reality question that it was required to do’, in that there was no evidence before the Tribunal that, if the appellant is targeted by BNP activists, it would not be for reasons of his political opinion, but because of the desire of the activists to revenge the death of their colleagues.

25                  In his written submission, the appellant asserted that what happened on the day in question was completely politically motivated.  He said that the BNP activists were trying to destroy government property and that the Jatiya Party activists, of which he was one, were attempting to protect property.  When the demonstration went out of control, the police were forced to shoot and two BNP activists were killed.  The appellant asserts in his submission that he went to the scene because he was involved with the Jatiya Party politics and in order to protect property, and that the Tribunal, therefore, made a wrong assumption that there was no real chance that he would be persecuted for reasons of his involvement with the Jatiya Party if he returned to Bangladesh.

26                  The appellant, in his written submissions, advances no specific matter in relation to the third ground, other than to reiterate that the Tribunal failed to consider the reality of the chance of the appellant being persecuted if forced to return to Bangladesh.  The primary judge concluded that there was evidence before the Tribunal upon which it could conclude, contrary to the appellant’s assertions, that any fear he had of the BNP was the result of their seeking revenge, rather than because of his political views.  It may be that, in a sense, there is a causal connection, in that, had the appellant not been involved with the political party, there may have been no basis for seeking revenge.  Nevertheless, the Tribunal clearly addressed the correct question.  I do not consider that there was any error on the part of the Tribunal.

27                  While the grounds of appeal in this Court are directed to errors on the part of the Tribunal, I have treated them as a complaint that the Federal Magistrates Court erred in not finding those errors.  For the reasons I have given, I am not persuaded that there was any error on the part of the Tribunal.  It, therefore, follows that there was no error on the part of the Federal Magistrates Court in reaching the conclusion that it did.  I consider, therefore, that the appeal should be dismissed.

Associate:

Dated:         10 November 2006