FEDERAL COURT OF AUSTRALIA SZGCO v Minister for Immigration & Citizenship [2007] FCA 637 SZGCO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 147 OF 2007 EDMONDS J 4 MAY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 147 of 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZGCO Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: EDMONDS J DATE OF ORDER: 4 MAY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. 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 147 of 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZGCO Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: EDMONDS J DATE: 4 MAY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 This is an appeal from a judgment of the Federal Magistrates Court (Scarlett FM) dismissing an application for review of a decision of the second respondent ('the Tribunal') affirming a decision of a delegate of the first respondent ('the Minister') refusing an application for a protection visa. Background 2 The appellant is a citizen of Bangladesh. The appellant arrived in Australia on 29 June 2004 and on 15 July 2004 he lodged an application for a protection (class XA) visa on the ground of political opinion, having been suspected of involvement with persons who assassinated President Ziaur Rahman ('President Zia'). After the Minister's delegate refused the appellant's protection visa application, he applied to the Tribunal for review of that decision. 3 The Tribunal found that the appellant did not have a well-founded fear of persecution in Bangladesh for reasons of political opinion and that having considered the evidence as a whole, the Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore, the appellant did not satisfy the criterion set out in s 36(2) of the Migration Act 1958 (Cth) ('the Act') for a protection visa. 4 The appellant sought judicial review of the Tribunal's decision in the Federal Magistrates Court. The Federal Magistrates Court dismissed the application as it was unable to discern any jurisdictional error in the Tribunal's decision. Claims before the Tribunal 5 The appellant made a number of claims before the Tribunal but the only claims that are relevant to the grounds of this appeal – see [11] – [14] below – relate to his 'involvement' in the assassination of President Zia on 30 May 1981. 6 The appellant claimed he was stationed in Chittagong, serving in the military, when President Zia was assassinated in the same city on 30 May 1981. He claimed he and his entire platoon were detained and investigated after the assassination. The appellant claimed he was held by the authorities for four months. The appellant claimed that on 15 June 1981 he was dismissed from the army and in September 1981 he was released from detention as no evidence was found against him. The appellant claimed he had been harassed and otherwise mistreated by members of the Bangladesh National Party ('the BNP') since 1981 because he was suspected of involvement in President Zia's assassination. 7 The Tribunal accepted the appellant's claim that he was in the army in 1981 when President Zia was assassinated. It accepted his claim he was detained for four months, investigated in connection to the assassination, and dismissed from the army. 8 But the Tribunal was not satisfied as to the credibility of his claim that he had been targeted by the BNP since 1981 because he was suspected of involvement in President Zia's assassination. In respect of this claim, the Tribunal observed: 'The applicant claims he was suspected by the authorities and the BNP of involvement in the 1981 assassination of President Zia. He claims he has been harassed and targeted by the BNP since the assassination because they still suspect him of involvement in the assassination. Although the Tribunal accepts the applicant's claim that he was detained and investigated following the assassination, it does not accept that the applicant was ever seriously considered a suspect by either the authorities or the BNP. Information from external sources, provided by the applicant and summarised above, indicates that following the assassination there was brutal retaliation against anyone suspected of involvement. Amnesty International (AI) in its letter to the applicant, indicates that suspects were taken into custody or killed … "without valid evidence" or access to justice … The Tribunal does not consider it plausible that the applicant was seriously suspected of involvement in the assassination but was able to survive the purge of 1981 and the twenty-four years since the assassination. The Tribunal has formed the view that if indeed the applicant was seriously suspected of involvement in the assassination, in any capacity, he would have been killed either at the time of the assassination or soon thereafter. The information from external sources does not indicate the BNP or the authorities required firm evidence to seriously harm or kill those suspected of involvement. The Tribunal is satisfied that a more plausible explanation for the applicant's ability to survive the investigation in 1981, and twenty-four years since the assassination, is that he was not seriously considered a suspect by either the authorities or the BNP. The Tribunal does not accept as credible the applicant's claim that he was seriously suspected of involvement in the 1981 assassination of President Zia by either the authorities or the BNP.' (Emphasis added) Proceedings in the Court Below 9 The appellant commenced proceedings in the Federal Magistrates Court by filing an application on 19 April 2005. He filed an amended application on 25 July 2005. In that amended application the appellant adopted the grounds of relief in his earlier application and added another ground. 10 On the day of the hearing (31 October 2006) his Honour granted leave to the appellant to rely on a further amended application which had been filed on 20 October 2006. The grounds of the further amended application were: '1. The Tribunal committed jurisdictional error of law where there was no evidence for the Tribunal finding that "if indeed the applicant was seriously suspected of involvement in the assassination, in any capacity, he would have been killed either at the time of assassination or soon thereafter" (CB 158.3, emphasis added). Particulars: a. The Tribunal accepted the applicant's claims that he was detained and investigated following the assassination (CB 157.9) b. The Tribunal further considered independent country information ("ICI") indicating "that following the assassination there was brutal retaliation against anyonesuspected of involvement … [and] that suspects were taken into custody or killed" (CB 157.10, emphases added) c. The finding by the Tribunal of the implausibility of the applicant's claim in this respect was a critical step in the Tribunal's ultimate conclusion d. It was not reasonably open to the Tribunal to reject the applicant's claim that he had a well-founded fear of persecution by relying on an unsupportable inference drawn from the information before the Tribunal 2. The Tribunal failed to act judicially and therefore committed jurisdictional error where it found that if the applicant was "seriously suspected" of assassinating President Zia he would have been killed. Particulars: a. The applicant repeats and relies on particulars at Ground 1 b. The applicant further submits the Tribunal's determination was not grounded upon probative material and logical grounds 3. The Tribunal constructively failed to exercise jurisdiction and review the delegate's decision in accordance with s 414 of the Migration Act1958 by failing to properly apply the test of persecution where the Tribunal did not accept that the case against the applicant was either politically motivated and/or false. Particulars: a. An important element of the applicant's claim was that criminal charges were falsely filed against him under the SPA and, by implication, not under the PC b. The Tribunal considered official documents provided by the applicant and noted that they indicate the applicant "was charged with a criminal offence … [and] was detained for over a year while the matter was being investigated … [and] he was released on bail when the complainant failed to attend court". c. ICI considered by the Tribunal indicated "[a] major problem of the court system [in Bangladesh] was the overwhelming backlog of cases … and the corruption encountered in the judicial process effectively prevented many persons from obtaining a fair trial … [with] many political activists … arrested and convicted with criminal charges as a pretext for their political activities" (CB 282) d. The Tribunal accepted that the SPA has been used against political activists, albeit "that the act has many applications, including provisions for criminal activities, and it is those provisions which relate to the applicant's case" (CB 159.1, emphasis added) e. However, the Tribunal did not consider whether or not initiating charges under the Penal Code as pretext for political activities could constitute persecution given the political situation prevalent in Bangladesh at the time. f. Accordingly, the Tribunal constructively failed to exercise jurisdiction by not considering the applicant's entire case – viz., all substantial matters which might bear on whether the applicant met the Convention requirements of a refugee. 4. The Tribunal committed jurisdictional error by failing to act judicially and in accordance with the merits and substantial justice of the case (as required by section 420(2)(b) of the Migration Act) by not making inquiries into why the … criminal charges facing the applicant were not brought under the PC. Particulars: a. The applicant repeats particulars to Ground 3 above 5. The Tribunal committed jurisdictional error by failing to inform the applicant of ICI indicating that "members of minor parties can commonly engage in political activities of their choice without adverse interest from either (sic) the major parties" (CB 162.1). Particulars: a. The applicant repeats particulars to Ground 3 above.' The Appeal in this Court 11 The appellant filed a notice of appeal from the judgment below on 5 February 2007. On 7 February 2007 the appellant filed an amended notice of appeal which raised one ground: 'His Honour erred in failing to determine the appellant's application for judicial review as articulated in the Further Amended Application filed 20 October 2006 and in respect of which his Honour granted the appellant leave to rely on the same at the hearing of the application on 31 October 2006.' 12 On the hearing of the appeal on 30 April 2007 I gave leave to the appellant to file in Court a further amended notice of appeal which raised a second ground, in addition to the ground in [11] above: 'His Honour also erred in failing to address the grounds of review particularised in the applicant's Further Amended Application and to give adequate reasons for concluding that the grounds of review in the Further Amended Application failed.' 13 In his written outline of submissions, the appellant at [2] put the following: 'The appeal in these proceedings raises the single and simple issue of whether the learned Federal Magistrate erred by failing to consider the grounds set out in the Further Amended Application.' 14 That same written outline conceded that the fifth ground of review in the Further Amended Application was not pressed below. During the course of the hearing of the appeal, counsel for the appellant abandoned the appeal with respect to the third and fourth grounds of review in the further amended application. That leaves the first and second grounds of review in the further amended application which are sought to be agitated by reference to grounds 1 and 2 of the further amended notice of appeal. First Ground of Review in the Further Amended Application 15 This ground of review asserted jurisdictional error on the basis that there was no evidence to support the Tribunal's finding that 'if … the applicant was seriously suspected of involvement in the assassination … he would have been killed …'. Ground 1 of the further amended notice of appeal asserts that his Honour failed to determine this ground of review and the first limb of Ground 2 of the further amended notice of appeal asserts that his Honour failed to address this ground of review. Accepting that there is a difference between addressing a ground of review and determining it, neither ground of appeal has any substance. At [25] of his reasons, his Honour both addressed and determined this ground of review in the following terms: 'Counsel for the applicant submitted that there was no evidence to support the Tribunal's findings that all those suspected of involvement in the assassination of President Zia were killed and that, therefore, the applicant was not "seriously suspected" of being involved in the assassination. In my view there was evidence upon which the Tribunal was entitled to rely for this finding, being the information from external sources provided by the applicant, being a letter from Amnesty International dated 3rd February 2005. Whether that evidence supported a finding that a person genuinely suspected of involvement in the assassination would be killed was a matter for the Tribunal.' 16 The second limb of Ground 2 of the further amended notice of appeal asserts that his Honour failed to give adequate reasons for concluding that the first ground of review in the further amended application failed. His Honour gave as his reason that, in his Honour's view, there was evidence upon which the Tribunal was entitled to rely for its finding, namely, the letter from Amnesty International ('AI') dated 3 February 2005. I would have thought that was an adequate reason and that would dispose of this ground of appeal. What counsel for the appellant sought to agitate on the hearing of the appeal was that the AI letter was not adequate evidence to answer the 'no evidence' ground of review, a very different matter and, as I read and construe the further amended notice of appeal, outside grounds 1 and 2. Nevertheless, in deference to counsel's arguments, I will record and deal with them. In this regard I was referred to what a Full Court said in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402 at [19] and [20] in response to an argument that there was no information before the Tribunal from which it could realistically draw the relevant conclusion: '[19] This argument, if it were made out, would be sufficient to establish that the tribunal had made a "jurisdictional error" so as to found jurisdiction in this court to intervene. If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: Australian Broadcasting Tribunal v Bond(1990) 170 CLR 321 at 355-7; 94 ALR 11 at 37-8; 21 ALD 1 at 23-4. If the decision of the tribunal was "Wednesbury' unreasonableness or if the material on which the tribunal relied was so inadequate that the only inference was that the tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 62, 67, 76, 90-91; 73 ALD 1 at 4, 8-9, 18, 31-3. (S20) [20] On the other hand, if there is sufficient evidence or other information before the tribunal on which it could reach the conclusion it did then it is for the tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a "jurisdictional fact", there is no error of law, let alone a jurisdictional error, in the tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6; 93 ALR 1 at 24-5. It is for the tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a "bright line", but it is nevertheless an essential one:Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; 136 ALR 481 at 490-1; 41 ALD 1 at 9.' Subsequently in its reasons (at [25]) the Full Court remarked that the difficulty was that there was no material either party could point to that would support the factual conclusions; rather, there was information to the contrary. 17 Counsel for the appellant pressed the 'no evidence' ground of review in respect of the Tribunal's finding by reference to the following – 1. The Tribunal's use of the word 'seriously' in the phrase 'seriously suspected' – there was no evidence that one had to be 'seriously suspected' to be killed; the AI letter did not say that; indeed, it indicated that there was brutal retaliation against anyone suspected – seriously or otherwise – of involvement. 2. The judgment of the Federal Magistrates Court (Scarlett FM) in SZIBR v Minister for Immigration & Anor [2006] FMCA 1490 (11 October 2006), not on the irrational or illogical findings ground, which his Honour rejected (at [40] – [43]), but on the 'no evidence' ground in respect of which his Honour concluded that SFGB applied. At [48] his Honour observed that while there was evidence available to show that the Maoists kill some but not all people who they suspect to be opposed to them, the finding of the Tribunal that it was: '… not satisfied that had the Maoists suspected the applicant of such behaviour, he would have lived to tell the tale' was a 'critical step' in the Tribunal's ultimate conclusion and there was no evidence to support the finding. This, according to his Honour, constituted jurisdictional error (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 – 357). 18 On the other hand, in the present case the Tribunal had before it material (the AI letter) which indicated that persons implicated in the assassination had been killed precipitately, without proof of their involvement. Whether that (together with a background understanding of Bangladeshi politics) supported a finding that someone genuinely suspected of involvement would be killed, was a matter for the Tribunal. Second Ground of Review in the Further Amended Application 19 This ground of review asserted jurisdictional error on the basis that the Tribunal failed to act judicially in making the finding that if the appellant was seriously suspected of assassinating President Zia he would have been killed. The failure to act judicially in making the finding was particularised as being not grounded upon probative material and logical grounds. Ground 1 of the further amended notice of appeal asserts that his Honour failed to determine this ground of review and the first limb of Ground 2 of the further amended notice of appeal asserts that his Honour failed to address this ground of review. Accepting that there is a difference between addressing a ground of review and determining it, neither ground of appeal has any substance. At [21](8) of his reasons, his Honour both addressed and determined this ground of review in the following terms; '(8) Tribunal finding of my review application of refugee claims was not based upon reasoning which provided a rational or logical foundation for this belief. The applicant's counsel submits that the Tribunal fell into jurisdictional error in circumstances where there was no evidence to support its findings that all suspects in President Zia's assassination (either "serious" or "mere" suspects) were killed and that the applicant was not seriously suspected of being involved in the assassination in circumstances where each finding was a critical step in its ultimate conclusion (see SFGB v Minister for Immigration and Multicultural Affairs (2003) 77 ALD 402; [2003] FCAFC 231 at [19]; SZIBR v Minister for Immigration and Multicultural Affairs [2006] FMCA 1490 at [44]-[50]). It was not reasonably open, he submitted, to the Tribunal to draw the inference that the applicant was not seriously suspected of the assassination because he survived to tell the tale. It was submitted that the Tribunal committed jurisdictional error of law because its particular finding about the applicant's involvement in the assassination was not "based on some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding … is … logically self contradictory" (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 312 at 356-357 and 367; WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 80 ALD 568 at [22]). The applicant submitted that the Tribunal's finding implies that to have a well­-founded fear of persecution by reason of being suspected of involvement in the assassination of President Zia the applicant would have to be dead. True it is that the Tribunal made the statement that "if indeed the applicant was seriously suspected of involvement in the assassination, in any capacity, he would have been killed either at the time of the assassination or soon thereafter." However, it is of no assistance to the applicant to rely on the decision in SZIBR v Minister for Immigration and Multicultural Affairs (supra) in support of the proposition that the Tribunal fell into jurisdictional error by making findings that were irrational, illogical or not based upon findings of fact supported by logical grounds. In SZIBR, a decision of mine, I specifically rejected this ground, saying at [41] – [42] that want of logic does not of itself constitute an error of law and the Full Court of the Federal Court has held that there is nothing that a departure from the earlier line of decisions in the Federal Court that illogical reasoning does not in itself constitute an error of law or jurisdictional error (see NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52; M153 of 2004 & Ors v Minister for Immigration [2006] FMCA 42; NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [29] and [30]; SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546). SZIBR was decided on another ground (a "no evidence" ground). In any event, the Tribunal's finding did not show a lack of rationality or logicality. The applicant's claim of illogicality or irrationality or not making a finding based on reasoning which provided a rational or logical foundation does not establish a jurisdictional error and therefore fails.' 20 The second limb of Ground 2 of the further amended notice of appeal asserts that his Honour failed to give adequate reasons for concluding that the second ground of review in the further amended application failed. I do not agree. His Honour's process of reasoning is clearly set out in the extract of his reasons set out in [19] above. 21 In any event, I agree with his Honour below that the Tribunal's finding did not show a lack of rationality or logicality. Even if it did, it was no more than a misconstruction of the evidence in the course of making a specific finding of fact (i.e. the finding that the appellant was not suspected of involvement in the 1981 assassination). It did not amount to an error of law or jurisdictional error: NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [29]; VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286; WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79 at [22]. See also NABE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 144 FCR 1, 16 – 17 ([52] – [54]). 22 The appeal must be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 4 May 2007 Counsel for the Appellant: Dr J Azzi Counsel for the First Respondent: Mr B D O'Donnell Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 30 April 2007 Date of Judgment: 4 May 2007