FEDERAL COURT OF AUSTRALIA SZCKD v Minister for Immigration and Multicultural Affairs [2006] FCA 451 MIGRATION – well-founded fear of persecution test – application of s 424A of the Act Migration Act 1958 (Cth) ss 36(2), 65(1), 424A SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412 Tillmanns Butcheries Pty Limited v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 SZCKD v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ANOR NSD 2638 OF 2005 GRAHAM J 21 APRIL 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2638 OF 2005 ON APPEAL FROM A MAGISTRATE IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZCKD APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: GRAHAM J DATE OF ORDER: 21 APRIL 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave be granted to the Appellant to amend the Amended Notice of Appeal filed 21 March 2006 by adding the 'Additional Ground For Review', so described, being Ground 2, as filed in Court on 21 April 2006. 2. The appeal be dismissed. 3. The Appellant pay the First Respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2638 OF 2005 ON APPEAL FROM A MAGISTRATE IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZCKD APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: GRAHAM J DATE: 21 APRIL 2006 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The Appellant, who is identified for the purposes of these proceedings as SZCKD, was born in Bangladesh on 16 January 1971. On 14 January 1999 he left Bangladesh and moved to South Africa. On or about 2 February 2002 he left South Africa travelling on a South African passport and with an Australian visa. He arrived in Australia on or about 3 February 2002. On 11 March 2002 he applied for a protection (Class XA) visa. That application was supported by a statutory declaration made by the Appellant bearing date 7 March 2002. On 31 July 2003 the application for a protection visa was refused by the Minister's delegate. 2 In August 2003 the Appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of the Minister's delegate's decision. It would appear that the Appellant lodged his application for review with the Tribunal in two different ways, that is to say, by facsimile on 12 August 2003 and by some other means on or about 14 August 2003. 3 A 31 page facsimile containing the Appellant's application for review was forwarded to the Tribunal by the Appellant's agent, Kazi and Associates, on 12 August 2003. 4 That facsimile included not only a formal four page application for review signed by the Appellant and bearing date 12 August 2003, but also a number of other documents including a copy of the Minister's delegate's determination of the Appellant's application for a protection (Class XA) visa dated 31 July 2003. Other documents were included with the application including, most importantly, a statutory declaration made by the Appellant bearing date 9 March 2002. 5 The Appellant's application for a protection (Class XA) visa incorporated a statutory declaration made by the Appellant on 7 March 2002. This application had been lodged with the Department on behalf of the appellant by his agent, Kazi and Associates. 6 It is somewhat curious that the statutory declaration which formed part of the original protection visa application bears a different date from the copy of the statutory declaration which was included as part of the Appellant's application for review to the Tribunal as contained in the facsimile dated 12 August 2003 to which reference has been made. The statutory declaration made 7 March 2002 appears to be identical in terms with the statutory declaration made 9 March 2002 and I am assured by counsel for the parties that in terms of content the statutory declarations are the same. 7 Another copy of the application for review to the Tribunal signed by the Appellant and dated 12 August 2003 appears to have been received by the Tribunal on 14 August 2003. 8 In relation to the section providing for a record of 'reasons for making this application', the facsimile copy included the words: 'I am not satisfy with the decession of DIMIA. I am a genuine refugee, DIMIA did not look my claim properly. In this condition I review to Honourable RRT.' In the copy of the document received by the Tribunal on 14 August 2003 the word 'satisfy' has been changed to read 'satisfied' and the word 'decession' has been changed to read 'decision'. 9 On 24 November 2003 the Tribunal affirmed the decision of the Minister's delegate not to grant the Appellant a protection visa. That decision was handed down on 18 December 2003. 10 On 6 January 2004 the Appellant filed an Application for constitutional writ relief in respect of the Tribunal's decision in the Federal Magistrates Court of Australia. On 19 April 2004 an Amended Application was filed in that Court and, upon the matter being called on for hearing on 13 December 2005, a Further Amended Application was filed in the Federal Magistrates Court. 11 The matter was both heard and decided in the Federal Magistrates Court on 13 December 2005, the Application being dismissed with costs. The formal orders of the Federal Magistrates Court were: '1. Application be dismissed. 2. Applicant to pay the respondent's costs in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.' 12 From that decision an appeal was brought to this Court by Notice of Appeal filed 29 December 2005. On 21 March 2006 an Amended Notice of Appeal was filed in this Court and it is that Notice of Appeal which has come before the Court for hearing. 13 When the matter was called on for hearing counsel for the Appellant, appearing pro bono, indicated that his client wished to rely upon an additional ground of appeal. That ground is said to have sprung from a reconsideration of the Tribunal's decision in the light of the decision of the Full Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs ('SZEEU') [2006] FCAFC 2 which was handed down on 24 February 2006. That decision was one of Moore, Weinberg and Allsop JJ. 14 Counsel for the Respondent Minister opposed leave being granted to the Appellant to rely upon the proposed additional ground. After a short adjournment a document entitled 'Additional Ground for Review' was produced by counsel for the Appellant recording the precise terms of the ground upon which the Appellant wished to rely. 15 The hearing of the appeal has proceeded on the premise that the Court will both decide the application for the amendment and the appeal itself at the one time. To that end the Respondent Minister read the affidavit of Catherine Jane Gray sworn 13 April 2006 which, amongst other things, attached the 31 page facsimile which had not been reproduced in the appeal book. 16 The Appellant submits that the Tribunal, whilst espousing reliance upon the correct test, failed to apply the correct test as to a well-founded fear of persecution in deciding the application before it. The Appellant further submits that the Tribunal fell into jurisdictional error by failing to comply with the requirements of s 424A of the Migration Act 1958 (Cth) ('the Act') in that it failed to give the Appellant particulars of information it considered would be the reason or part of the reason for affirming the decision of the Minister's delegate that was under review and inviting the Appellant to comment upon that information. 17 It is convenient to quote those parts of the reasons for decision of the Tribunal which are relevant to the ground in the Amended Notice of Appeal and the additional ground upon which the Appellant wishes to rely: '... the Tribunal finds that it cannot be satisfied as to the credibility of the applicant. The Tribunal notes that the applicant has changed his claims significantly in the process of his applications at the primary and review stages. In his original application dated 11 March 2002, the applicant made no mention of any harm he had suffered as a Hindu and only mentioned the BJP as his political opponent. He also made no mention of having had "false cases" filed against him. This was a claim only introduced by his adviser in his submission. At the time of the review, he had revised his evidence with regard to the harm he had suffered before leaving Bangladesh to make the Jamaat-e-Islami the primary source of harm he had suffered. The Tribunal notes that the applicant in his oral evidence claimed the "false charges" had been laid following the incident on 26 March 1998 and that immediately afterwards the police came to his house. The Tribunal notes that in his primary application, there was no mention of "false charges" having been laid. In the light of the fact that he had not mentioned this claim in his primary application, and the fact that he was able to depart Bangladesh using his own passport, the Tribunal finds that his claim with regard to false charges having been laid is a fabrication designed to strengthen his claim. ... … The Tribunal accepts that the applicant as a Hindu would be concerned as to the current situation of Hindus in Bangladesh. The Tribunal accepts the independent evidence cited above that there is generalised societal discrimination against Hindus in Bangladesh, including access to jobs in government and the military, that Hindus are disadvantaged in achieving political office, and that religious minorities continue to perceive and experience discrimination from the Muslim majority. The Tribunal has considered the particular circumstances of the applicant and finds on the basis of the fact that the applicant was able to gain high school education, that any such generalised societal discrimination the applicant may have suffered did not constitute serious harm. The Tribunal also accepts the independent evidence that Hindus in Bangladesh have been suffering increasing harassment and harm from fundamentalist Muslims and that the new government has lessened the general level of religious tolerance that has prevailed in Bangladesh. The Tribunal also accepts the independent evidence that the government has sometimes failed to criticise, investigate, and prosecute the perpetrators of attacks on members of religious minorities. However, the Tribunal finds that the evidence before it indicates that these attacks are in general on prominent Hindus or are in the nature of random and non-selective attacks. The Tribunal is not satisfied that the applicant has been active politically as he claims, and hence does not have a profile such that there is a real chance he would be targeted by those engaged in such activities. The Tribunal further finds that there is no real chance that the applicant would suffer serious harm in what remains isolated, unsystematic and non-selective attacks on Hindus in Bangladesh. In the circumstances of the applicant's case, the Tribunal is not satisfied by the totality of the evidence before it, that there is a real chance the applicant would be persecuted now or in the reasonably foreseeable future for any Convention reason if he returned to Bangladesh. Overall, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.' (emphasis added) 18 The ground of appeal contained in the Amended Notice of Appeal suggests that the Tribunal applied a 'balance of probabilities test' to determine whether there was a chance of the Appellant suffering persecution if he were to return to Bangladesh. It is submitted that whilst the Tribunal espoused a consideration of the matter by reference to whether there was a 'real chance' that the Appellant would suffer serious harm were he to return, it did not apply a 'real chance' approach but rather looked at the matter on a 'balance of probabilities' approach. 19 Under s 65(1)(a)(ii) of the Act, the Minister is to grant a visa to an applicant if satisfied that 'the other criteria for it prescribed by this Act or the regulations have been satisfied'. If not so satisfied, then under s 65(1)(b) of the Act, the Minister is to refuse to grant the visa. Under s 36(2) of the Act a criterion for a protection visa is that the applicant for the visa is: '36(2)(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.' 20 Under the Convention Relating to the Status of Refugees made on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done on 31 January 1967 a person is a refugee 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.' 21 The question for the Tribunal to consider was whether or not the Appellant had a well-founded fear of persecution were he to return to Bangladesh, for a Convention reason. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo ('Guo') (1997) 191 CLR 559 at 572: 'A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term "real chance" not as epexegetic of "well-founded", but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.' 22 In Chan Yee Kin v Minister for Immigration and Ethnic Affairs ('Chan') (1989) 87 ALR 412 , Mason CJ said at 418: 'I agree with the conclusion reached by McHugh J that a fear of persecution is "well-founded" if there is a real chance that the refugee will be persecuted if he returns to his country of nationality.' 23 His Honour later said at 418: 'But I prefer the expression "a real chance" because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring … .' 24 At 448, McHugh J said: 'Obviously, a far-fetched possibility of persecution must be excluded.' 25 In Guo at 571-2, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ indicated general support for the propositions to which I have referred in Chan, subject to the qualification that care must be taken to ensure that the relevant test under the Convention is not replaced by a new test expressed as 'a real chance'. 26 The ground of appeal upon which the Appellant relies, referrable to the question of whether the Tribunal applied the correct test, focuses attention upon the findings of the Tribunal that there are attacks on Hindus in Bangladesh which are random, isolated, unsystematic and non-selective. Counsel for the Appellant argues that such findings in respect of attacks on Hindus compel a conclusion that there was a real chance that the Appellant would suffer serious harm were he to return to Bangladesh or, expressed in Convention terms, that he would have a well-founded fear of persecution were he to return. 27 Like the learned Federal Magistrate, I am unable to accept this submission. It is clear that the Tribunal has addressed the question in the manner required by the Act and the Convention and has not approached the matter by reference to a balance of probabilities test to determine whether there was a chance that the Appellant would suffer serious harm for a Convention reason were he to return to Bangladesh. 28 In support of the Appellant's argument, the Appellant relied upon an illustration provided by Deane J, then a member of this Court, in Tillmanns Butcheries Pty Limited v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 at 381. His Honour was at that stage considering the meaning to be given to the words 'likely' and 'substantial' in s 45D of the Trade Practices Act 1974 (Cth). In relation to the meaning of the word 'likely' his Honour provided this illustration: '... if I fire a rifle through drawn curtains into a quiet lane in a country village, it is not likely, in the sense of more likely than not or an odds-on chance, that I will injure anyone. It would, however, be difficult to deny that there was a real chance or possibility (or likelihood in that sense) that an occasional passer-by would be wounded by the bullet. Plainly, the act of firing a rifle through drawn curtains into a lane used by pedestrians would be an act which was, in the circumstances, prone or liable (likely in that sense) to cause injury to a passing pedestrian.' 29 It is clear that there would be a real chance in such circumstances that the person firing the rifle would injure a third party. Whilst one can accept, as his Honour indicated, that there would also be a real chance that a pedestrian who may be travelling along the road adjacent to the place from which the rifle is fired might be injured, such a real chance would be one which would affect persons walking along the particular street rather than persons inhabiting the country in which the street happened to be located. 30 Given, especially, the use of the word 'isolated' and the other words to which attention has been drawn, I am unable to conclude that the Tribunal applied the wrong test to determine whether or not the Appellant had a well-founded fear of persecution in reaching the conclusion which it did. In the circumstances ground of appeal 1, as recorded in the Amended Notice of Appeal, fails. 31 In relation to the foreshadowed second ground of appeal, counsel for the Respondent Minister submits that leave to rely upon it should be refused for the reason that it would inevitably fail. Even if that be the case, given the circumstances in which the Appellant has come to consider the possibility of raising the ground, namely, the recent publication by the Court of its reasons for decision in SZEEU, I am of the opinion that leave ought to be granted to the Appellant to amend the Amended Notice of Appeal filed 21 March 2006 by adding Ground 2 as recorded in the sheet of paper handed up by counsel for the Appellant which I will initial and date this day and place with the papers. 32 Turning to a consideration of that ground it is conceded, and in my view correctly, by counsel for the Respondent Minister that but for the application to the circumstances of the case of s 424A(3)(b) of the Act, there would have been a failure by the Tribunal to comply with the requirements of s 424A(1) of the Act. Plainly the Tribunal had regard to the Appellant's 'original application dated 11 March 2002' and also to what was referred to as 'his primary application'. In my opinion, the expression 'his primary application' was intended as a reference to what was earlier described as 'his original application dated 11 March 2002'. In particular, the material which the Tribunal had regard to was the information contained or perhaps more accurately not contained in the statutory declaration of the Appellant made on 7 March 2002 which was included in the application for a protection (Class XA) visa lodged on 11 March 2002. 33 The problem for the Appellant is that s 424A(1) does not apply to 'information ... that the applicant gave for the purpose of the application', within the meaning of section 424A(3)(b) of the Act. Accepting that the words 'the application' mean the application for review made to the Tribunal, a question arises as to whether or not the information to which the Tribunal had regard was information that the Appellant gave to the Tribunal. 34 In my opinion the inescapable conclusion is that all of the information contained in the 31 page facsimile, which constituted the application for review as submitted to the Tribunal by the Appellant's agent, Kazi and Associates, on 12 August 2003, constituted information that the Appellant gave for the purpose of the application within the meaning of s 424A(3)(b) of the Act. Accordingly, s 424A has no application in the circumstances of the case. 35 Counsel for the Appellant referred me to the reasons for judgment of Moore J in SZEEU where his Honour said at [20]: '... What the Tribunal did was to note what the appellant said in the written statement made at the time he applied for a protection visa. The Tribunal thereby gained knowledge of what the appellant had said at that time about his experiences in Bangladesh. It was knowledge used by the Tribunal in assessing the credibility of the appellant and assessing the veracity of the account given by the appellant to the Tribunal. I do not accept that, by adopting the statement at the hearing before the Tribunal, that information was transformed into information provided by the appellant in his application for review. ... If the Tribunal comes to know of what was said by an applicant at a point before any application for review was made, and views what was said at that time as material to its assessment of what was later said by an applicant, then the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly information in the present appeal) being comprehended by s 424A(3)(b). ...' 36 At [157] Weinberg J said, to like effect: 'The adoption of the earlier statement by the appellant during the hearing before the Tribunal did not render it information provided by him in his application for review.' 37 This case is quite different from one where in the course of a hearing before a Tribunal member an earlier statement was adopted. In this instance the information to which the Tribunal referred in its reasons was information derived from the documents which the Appellant gave to the Tribunal for the purpose of the review application. 38 In the circumstances, ground of appeal 2 fails. 39 Accordingly, the appeal should be dismissed with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 27 April 2006 Counsel for the Appellant: A B Slattery Counsel for the First Respondent: T Reilly Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 21 April 2006 Date of Judgment: 21 April 2006