FEDERAL COURT OF AUSTRALIA SZJVD v Minister For Immigration and Citizenship [2007] FCA 1302 SZJVD, SZJVE AND SZJVF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1074 OF 2007 MIDDLETON J 9 AUGUST 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1074 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZJVD First Appellant SZJVE Second Appellant SZJVF Third Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MIDDLETON J DATE OF ORDER: 9 AUGUST 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The first respondent be given leave to rely upon the notice of contention dated 6 August 2007. 2. The appeal be dismissed. 3. The first and second appellants pay the costs of the first respondent. 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 1074 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZJVD First Appellant SZJVE Second Appellant SZJVF Third Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MIDDLETON J DATE: 9 AUGUST 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from a judgment of a federal magistrate delivered on 1 June 2007 dismissing an application for judicial review of a decision of the second respondent ('the Tribunal') dated 23 October 2006. The Tribunal had affirmed decisions of delegates of the first respondent refusing to grant protection visas to the appellants. PROCEDURAL BACKGROUND 2 The first and second appellants are husband and wife who are citizens of Bangladesh and arrived in Australia on 15 August 1999. The third appellant is the child of the first two appellants and was born on 4 December 1999 in Australia. 3 On 27 September 1999 the appellants lodged an application for protection visas with the Department of Immigration and Multicultural Affairs (as it was then known). Only the first appellant had made claims for protection with the second appellant relying on membership of his family unit. A delegate of the first respondent refused the application and on 12 November 1999 the first and second appellants applied to the Tribunal for a review of that decision. 4 On 28 April 2000, the third appellant lodged his own application for a protection visa, which was refused. The third appellant sought review of that decision by the Tribunal on 6 February 2001 and indicated that he relied on his parents claims in their application to the Tribunal. 5 In separate decisions made on 30 November 2001, the Tribunal affirmed the delegates' decisions in relation to the appellants' separate applications. Those decisions were quashed by the Federal Magistrates Court on 5 March 2004 (see NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 36). The first respondent's appeal of that decision to this Court was dismissed on 23 September 2004. The Tribunal reaffirmed the delegates' decisions in relation to all three appellants in one decision made on 9 March 2005. That decision was quashed and remitted to the Tribunal by consent orders in the Federal Magistrates Court on 28 June 2006. The current appeal relates to the Tribunal's decision consequent to that order. THE APPELLANT's CLAIMS 6 I will now refer to the first appellant as 'the appellant' as the claims for protection are founded on his claims. The appellant claimed to have a well-founded fear of persecution for his political opinion, stating that his family's political background, political enmity and his involvement in politics compelled him to leave his country. 7 He claimed his father was a great leader and would have in the future become a parliamentary member but was killed, along with two of his uncles, by political rivals in 1971. He claimed that their political opponents also tortured his mother mentally by routinely visiting their house and forcing the family to spend the night outside. His mother died after nine months of that treatment. 8 In 1982 the appellant attended college and joined the Bangladesh Jatiota Badi Chatradal which was the student wing of the Bangladesh Nationalist Party ('BNP'). He became organising secretary of the student wing of that party in 1985. After graduation, the appellant continued his political activities with the BNP and in 1989 he was elected joint secretary of a branch of the BNP. 9 The appellant claimed to have participated in campaigning for the 1996 elections, which resulted in the Awami League coming into power. On 3 August 1996 his house was ransacked and one of his brothers was beaten by the Awami League. The police failed to provide any remedy. 10 The appellant claimed to have participated in various gatherings against the Hasina government and later, against Awami League corruption. On 23 September 1998 he was severely attacked by Awami League thugs. Again, on 17 February 1999 the appellant claimed he and his wife were punched and kicked on return from the markets in a rickshaw and he was informed that a false case was filed against him. 11 In a statement dated 15 November 2004 and sent to the Tribunal (previously constituted), the appellant indicated that the former President Dr B Chowdhury had resigned from the BNP led government to form a new party named Bikolpo Dhara Bangladesh ('BDB'). The appellant claimed to have been a supporter of the former president. In a statutory declaration dated 4 September 2006 and sent to the Tribunal on 5 September 2006 the appellant gave further evidence of his support of the former president. He claimed to have joined supporting groups in Australia and attended demonstrations in support of the former president, and feared persecution from the current BNP government. At the hearing before the Tribunal, he indicated he resigned from the BNP in 2003. THE TRIBUNAL'S DECISION 12 The Tribunal considered the evidence provided to it and evidence the appellant had given to the Tribunals previously constituted. The Tribunal considered the appellant's claims of fear of persecution from the Awami League as a member of the BNP. It accepted he was a member of the BNP and was the organising secretary of the party in his local area from 1993 until his departure from Bangladesh. The Tribunal had regard to the evidence of his activities and found that the appellant's activities were limited in geographical scope and the Tribunal concluded that he had not engaged in political activities at a level that gave him a significant political profile in Bangladesh. 13 The Tribunal accepted the appellant's claims of attack, including that the appellant's house was ransacked in 1996, and that he had been assaulted in 1998 and attacked in 1999. In relation to the 1996 attack the Tribunal was not satisfied that that incident involved systematic or discriminatory conduct on behalf of the appellant's political opponents and that there was a real chance of him suffering similar harm at the hands of Awami League supporters in the reasonably foreseeable future. 14 The Tribunal gave the following reasons for finding the attacks in 1998 and 1999 did not amount to persecution for a Convention reason: The Tribunal accepts that the applicant was assaulted in 1998 as he was walking to his brother's house in a different locality. However, the applicant was not in his own locality at the time and had not been able to identify his attackers. When he was asked at the hearing why he had thought that he was assaulted by Awami League supporters, he said that he had no other enemies and he thought that he must have been followed by Awami League supporters from his locality. The Tribunal does not find the applicant's conjecture a satisfactory basis for finding that the assault on his was carried out by Awami League and for the reasons he has provided. The applicant did not claim to have been assaulted again and in this manner in the subsequent months that he continued to work at the same place and reside at the same address. The Tribunal is also of the view that in February 1999 the applicant had found himself at the wrong place at the wrong time and the attack on him was an isolated incident. According to his evidence, he was riding home in rickshaw and passing through an area which happened to have hosted an Awami League meeting. It was unfortunately there and at that point of time that the rickshaw he and his wife were travelling on was stopped and he was harassed. The Tribunal is not satisfied that this incident amounts to systematic and discriminatory conduct and that the chance of the applicant suffering similar harm in the reasonably foreseeable future is real. 15 In relation to the false case filed against the appellant, the Tribunal noted that the appellant's own evidence was to the effect that this was common in Bangladesh and that he himself did not think too much of it. Furthermore, if the authorities had decided to seriously pursue the matter, there would have been follow-up summonses. The Tribunal was not satisfied that the police had taken the case seriously or had genuine interest in the appellant and found that the false case did not give rise to any real chance of persecution. 16 The Tribunal noted the appellant resigned from the BNP in 2003 and based on the evidence, was not satisfied there was a real chance he would suffer persecution for reason of his past membership of the BNP. The Tribunal also indicated that it would be satisfied relocation within Bangladesh would be reasonable. 17 The Tribunal considered the claims relating to the BDB but found that his claims were self-serving and a response to the fact that the BNP came to power in 2001. The Tribunal found it "odd" that the appellant would, after two decades of devotion to the BNP, suddenly switch allegiances. The Tribunal found the appellant was unable to provide a persuasive reason for his being dissatisfied with the BNP-led government. The Tribunal was of the view that the appellant's BDB claims and related activities in Australia were within the operation of s 91R(3) of the Migration Act 1958 (Cth) ('the Act'). 18 However, the Tribunal went on to conclude that even if it was satisfied that the appellant did not engage in those activities to bolster his claims, the Tribunal stated that it was not satisfied that his affiliation with and activities in support of the BDB would amount to there being a real chance of the appellant suffering harm in Bangladesh amounting to persecution for reasons of such affiliation or activities. The Tribunal had regard to country information which did not "give an overall impression that at the grass-roots level, BDB supporters have been subjected to systematic harm or harassment by the government or BNP supporters". 19 The Tribunal turned to the evidence regarding the appellant's family and accepted the appellant's father and uncle were politically active, were killed in Bangladesh more than 30 years ago, and that his family may have been imputed with the political view of opposing the country's independence in 1971. However, it was not satisfied that this background meant there was a real chance he would suffer persecution for reason of his membership of his family and his family's real or perceived anti-independence views. 20 For these and some other reasons, the Tribunal was satisfied the appellant's fear of persecution in Bangladesh for a Convention reason was not well-founded. THE FEDERAL MAGISTRATE'S DECISION 21 On 8 December 2006 the appellant sought judicial review in the Federal Magistrates Court. Before the federal magistrate, the appellant relied on an amended application filed on 1 May 2007 which asserted the Tribunal fell into jurisdictional error by finding the appellant was attacked in February 1999 and that his house was ransacked in 1996 but that this did not amount to systematic and discriminatory conduct and that the appellant would have a real chance of suffering similar harm in the reasonably foreseeable future. In his submissions to the Federal Magistrates Court, the appellant raised as an additional issue the Tribunal's finding that it was reasonable for the appellant to relocate to a different part of Bangladesh. He submitted that that finding was "not unaffected" by the jurisdictional error identified by the grounds pleaded in the amended application, namely that the Tribunal misdirected itself as to the proper meaning of "systematic". 22 The federal magistrate consulted a number of authorities with regard to the meaning of s 91R to understand the interpretation of the phrase "systematic and discriminatory conduct". His Honour then had regard to the attack on the appellant in 1999 and found (at [18] to [19]): Although the event in question was fortuitous and, indeed, isolated, as the Minister has submitted, the conduct towards the applicant was not random or unsystematic in the sense of being non-selective. The fact that the applicant and his wife were in the wrong place at the wrong time, as the Tribunal described it, was a random chance but the treatment which was meted out to the applicant was not random. It was specifically directed towards him by his political opponents because he was their political opponent. To this extent, the Tribunal erred in finding that the conduct in question was not systematic and discriminatory. However, its consequential conclusion was that it was not satisfied that the applicant had a real chance of suffering similar harm in the reasonably foreseeable future was not affected by error. Given the isolated, and apparently unique, quality of the incident, this was a finding open to the Tribunal on the material before it and is not affected by its misunderstanding of the term "systematic". 23 In relation to the 1996 house attack, the appellant conceded that the factual findings were different to the 1999 attack. Whether or not the Tribunal misunderstood the meaning of 'systematic', the federal magistrate found it was open to the Tribunal to conclude that the attack was not politically motivated but merely a non-selective random consequence of the unrest at the time. 24 With regard to the additional issue raised before the Federal Magistrates Court of relocation, the court found as follows (at [24] to [30]): The applicant submitted that the Tribunal had made no finding that the applicant would not be involved in politics in a different area were he to relocate and, thus, its finding that it was reasonable for him to relocate was erroneous. The submissions were originally based on a mistaken belief that the applicant remained a member of the BNP and that Awami League supporters might pursue him with the consequence that the Tribunal's misunderstanding of the meaning of "systematic" affected its decision in relation to relocation. However, the submission was subsequently amended to take account of the fact that the applicant was no longer a member of the BNP but had joined the BDB. In this regard, the applicant submitted that the Tribunal's observation at CB 198 that the independent country information did not give an overall impression that at the grassroots level BDB supporters had been subjected to systematic harm or harassment by the government or BNP supporters reflected the same misunderstanding of "systematic" as affected other portions of its decision. However, what the Tribunal actually concluded was: While violence against political parties, much of it attributable to criminal elements, is an unfortunate aspect of a relatively new and still maturing political process, BDB is a legal party and operate [sic] openly. In the Tribunal's view, if the applicant were to engage in political activity at the same level at the same level [sic] he has in Australia the Tribunal is not satisfied that there is a real chance that he would face harm as a result. (CB 198). This finding is to the effect that the applicant did not have a well-founded fear of persecution for a Convention reason notwithstanding his likely BDB activities upon return to Bangladesh because it was not satisfied that there was a real chance he would suffer harm. But the Tribunal did not actually consider the issue of relocation in the context of the applicant's membership of the BDB. No doubt this was because its principal conclusion in relation to that membership and related activities was that it had not occurred otherwise than for the purpose of strengthening the applicant's claim to be a refugee, with the consequence that it had to be disregarded by reason of s.91R(3). The BDB membership and participation in BDB activities in Australia, being disregarded, were logically irrelevant to the relocation issue. Even if the Tribunal's misunderstanding of the true meaning of "systematic" affected its conclusion quoted at paragraph 26 above, that conclusion had no significance for the Tribunal's decision in relation to the applicant's BDB membership because of the operation of s.91R(3). The discussion in question does not form part of the basis of the Tribunal's decision. As to the reasonableness of relocation in the context of the applicant's claim to fear persecution by Awami League members, the Tribunal's conclusion was that because the applicant's political activities were highly localised and he feared "his old locally-based political opponents" the Tribunal did not accept that he would be found by them in a country as densely-populated as Bangladesh. These are findings of fact unaffected by any misunderstanding by the Tribunal of "systematic". As such, they are not susceptible to review by the Court in these proceedings. 25 The federal magistrate also dealt with the amended application filed 1 May 2007 in the following way (at [9]): In his submissions to the Court the applicant raised as an additional issue that the Tribunal's finding that it was reasonable for the applicant to relocate to a different part of Bangladesh was "not unaffected" by the jurisdictional error identified by the grounds pleaded in the amended application, namely, that the Tribunal misdirected itself as to the proper meaning of "systematic". GROUNDS OF APPEAL 26 In the notice of appeal filed on 14 June 2007 in this Court, the appellant raises four grounds of appeal which asserts the federal magistrate erred by: 1. failing to find the Tribunal failed to respond to the material facts of the case; 2. failing to find the Tribunal deprived the appellant of natural justice; 3. his Honour's consideration of the appellant's persecution; and 4. failing to find the Tribunal, having accepted the appellant's house was attacked in February 1999, should have been satisfied that this did amount to persecution. CONSIDERATION 27 To the extent that the first three grounds of appeal, which are not particularised and are formulaic, refer to the matters put before the federal magistrate, I find them to be without merit for the reasons identified below. To the extent that the grounds are new, there is nothing to support the appellant in favour of such generalised contentions. Before me, in oral submissions, the appellant sought to rehearse the facts which he considered should have been found by the Tribunal, and made a general allegation the Tribunal did not properly investigate the claims. I cannot reconsider the facts, and have found nothing to support the contention that the Tribunal did not properly consider the appellant's claims. 28 In relation to the fourth ground, this raises a matter that was addressed by the federal magistrate. The notice of appeal only refers to the reasoning in connection with the "house attack" in February 1999. The house attack was claimed by the appellant to have occurred in 1996, but there was an additional incident in February 1999. It is thus unclear to which finding this ground of appeal relates. However, it is appropriate that both findings be considered in the same way that both findings were challenged in the Federal Magistrates Court and considered by the federal magistrate. 29 In my view, there was no error in the finding of the federal magistrate that the Tribunal's "consequential conclusion" that it was not satisfied that the appellant had a real chance of suffering similar harm in the reasonably foreseeable future was open to the Tribunal. 30 In relation to the 1996 attack, the Tribunal found as follows: The Tribunal is prepared to accept that the applicant's house was attacked and ransacked in 1996 and, in the applicant's absence, his brother was assaulted. The Tribunal considers it significant that the attack had occurred in August 1996 two months after general elections were held in Bangladesh. According to US State Department the year 1996, which saw two general elections in Bangladesh, was marked by widespread violence against political parties and their student wings (US State Department, Country Reports on Human Rights Practices – 1996, Bangladesh, released by the Bureau of Democracy, Human Rights, and Labor, January 1997, http://www.state.gov/www/global/human_rights/1996_hrp_report/banglade.html). The applicant claims to have come from a known political family and the Tribunal is of the view that this contributed to the applicant's house becoming an unfortunate target during this volatile and politically violent period. The applicant continued to live at his house until 1999 and did not claim that the house was attacked between August 1996 and prior to his departure from Bangladesh when he had remained politically active. The Tribunal is not satisfied that this incident involved systematic and discriminatory conduct on behalf of the applicant's political opponents, and that there is a real chance of him suffering similar harm in the hands of Awami League supporters in the reasonably foreseeable future. 31 Putting aside then the question of "systematic and discriminatory conduct", I think there was evidence to support the finding that the Tribunal was not satisfied there was real chance of the appellant suffering similar harm at the hands of Awami League supporters in the reasonably foreseeable future. This arises from the fact of widespread violence occurring in 1996 because of the two general elections, and the fact of no attack to the house since 1996 and the appellant's departure from Bangladesh. 32 In relation to the 1999 rickshaw incident, in addition to the findings I have referred to above, there was additional evidence before the Tribunal as follows: The applicant was asked about the incident of assault in February 1999. He said the rickshaw he and his wife were travelling in was stopped by a group of Awami League supporters after an Awami League meeting had concluded in that area, which was close to his own locality. He was teased and was asked mocking questions such as "have you become a big leader?" He was ultimately let go after his wife cried and pleaded with the men. 33 It seems to me that the Tribunal could readily come to the view that it was not satisfied that the chance of the applicant suffering similar harm in the reasonably foreseeable future was real. 34 Therefore, in regard to both the 1999 rickshaw incident and the 1996 attack, even if there was an error by the Tribunal in connection with its understanding of the word "systematic and discriminatory", this did not affect its independent view, clearly open on the evidence, that there was no real chance that the conduct in question would occur in the future. 35 In relation to the separate matter of relocation, I have come to the same view in relation to that issue as did the federal magistrate and for the same reasons as set out above. The Tribunal considered the appellant's claims in this regard as a separate matter for consideration having regard to the particular circumstances of the appellant, stating: The applicant's claims make it clear that all his political activities were highly localised and he fears his old locally based political opponents. Bangladesh has a population of 130 million people and 64 districts (see http://www.deshimaps.comdistrict_maps.html). The applicant has provided no persuasive reasons to why he would be unable to relocate internally. The Tribunal does not accept that he will be found by his old political opponents anywhere in a densely populated country like Bangladesh. He had indicated that he is financially well off in Bangladesh and did not claim that he could find it financially or otherwise difficult to relocate. The Tribunal, therefore, is satisfied that if the applicant wants to avoid his own political opponents in his locality or surrounding localities for that matter it is reasonable for him to relocate within Bangladesh. 36 It seems to me that this finding was open and acts as an independent basis for the Tribunal's decision. 37 The above conclusions make it unnecessary for me to consider whether the federal magistrate erred in concluding that the Tribunal fell into error by its finding that the conduct experienced by the appellant was not systematic and discriminatory, or to consider the meaning of the term "systematic" as was sought to be raised by the first respondent in its notice of contention dated 6 August 2007. 38 I will, however, give leave to the first respondent to rely upon the notice of contention, but I find it unnecessary to say anything more about the matters raise therein. 39 For the above reasons, the appeal should be dismissed. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 22 August 2007 Counsel for the Appellant: The appellants appeared in person. Counsel for the Respondent: L Clegg Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 August 2007 Date of Judgment: 9 August 2007