SZCXK v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1019 (25 July 2006)

Last Updated: 8 August 2006

FEDERAL COURT OF AUSTRALIA

SZCXK v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 1019

MIGRATION − protection visa − whether appellant’s opposition to criminal activity gave rise to a well-founded fear of persecution for reasons of political opinion − material before the Tribunal did not articulate or clearly raise claim − appeal dismissed


C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430; (1999) 94 FCR 366 cited
Canada (Attorney-General) v Ward [1993] 2 SCR 689 cited
Minister for Immigration and Multicultural Affairs v Y (Unreported, Federal Court of Australia, Davies J, 15 May 1998) cited
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 cited
Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 cited
V v Minister for Immigration and Multicultural Affairs [1999] FCA 428; (1999) 92 FCR 355 cited
VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; (2003) 129 FCR 168 cited

G S Goodwin-Gill, The Refugee in International Law (2^nd ed, 1996)















SZCXK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 2488 OF 2005

BENNETT J
25 JULY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2488 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCXK Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	25 JULY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to file an amended Notice of Appeal is dismissed.
2. The appeal is dismissed.
3. The appellant pay the respondent’s costs of the appeal.

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 2488 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCXKAppellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRSFirst RespondentREFUGEE REVIEW TRIBUNALSecond Respondent

JUDGE:	BENNETT J
DATE:	25 JULY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 On 23 November 2005, Federal Magistrate Emmett dismissed an application pursuant to s 39B of the Judiciary Act 1903 (Cth) and s 483A of the Migration Act 1958 (Cth) for judicial review of a decision of the Refugee Review Tribunal affirming a decision of the Delegate of the first respondent not to grant a protection visa to the appellant.
2 The appellant appeals to this Court from the decision of the Federal Magistrate and seeks leave to file an amended Notice of Appeal, which is opposed by the first respondent. The amendment seeks to introduce a ground of appeal not relied upon before the Federal Magistrate. The appellant was represented by counsel before her Honour.
3 The parties agree that the appropriate course is to examine whether the proposed ground of appeal has prospects of success. No issue is now taken with her Honour’s decision save for it being said that she failed to recognise an alleged error on the part of the Tribunal which was not raised before her. The proposed ground of appeal asserts that the Tribunal erred in failing to consider whether the harm feared by the appellant, as a consequence of his objecting to the illegal activities of those who dealt in drugs, abducted women and engaged in arson, could have been due, at least in part, to his political opinion.
4 The appellant does not rely on any matter not set out in the Tribunal’s reasons.

Facts before the Tribunal

5 The appellant is from Bangladesh and a member of the Bihari community. His claim to the Tribunal centred on that fact. His claim to a well-founded fear of persecution for that reason was rejected and the appellant does not challenge that finding. Rather, the appellant submits that an additional claim arose on the material before the Tribunal which it failed to consider, namely that he has a well-founded fear of persecution for reasons of political opinion.
6 The appellant was the victim of attempted extortion by local hooligans who lived near (but not in) the Bihari camp in which the appellant resided in Bangladesh. The evidence before the Tribunal was that the appellant was victimised by the hooligans because they knew that he had worked in Kuwait and believed that he had money. Those hooligans were also involved in drug dealing, taking women from the camp and arson. The appellant disagreed with what they were doing and was involved in disputes with them. He stated that the hooligans got angry with him and wanted to take revenge. A friend of his had been killed by the hooligans. The Tribunal did not accept that, if the hooligans wished to harm the appellant, it was for a Convention reason including political opinion. Instead, the Tribunal considered that, if the hooligans did wish to harm him, it was because he objected to their illegal activities. The Tribunal did not consider whether such an objection itself amounted to political opinion.

Political opinion

7 The Tribunal was not obliged to make the case for the appellant (Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 at 50). The appellant’s main claim before the Tribunal was to a well-founded fear of persecution because he was a member of the Bihari community in Bangladesh. Although there was no direct claim of persecution for political opinion, that is not the end of the matter. A claim ‘not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal’ (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58]).
8 The appellant asserts that the facts as set out above raise a claim to persecution for political opinion that was not considered by the Tribunal. While the Tribunal did address his claims about the hooligans, the appellant asserts that it did not consider whether those facts in the context of the application amounted to a claim to persecution for political opinion.
9 The appellant concedes that an objection to criminal activity does not of itself amount to political opinion. Opposition to criminality can amount to political opinion (Saliba at 46 to 49), but where such a finding has been made something more than mere objection has been required, generally opposition to corrupt police or government officials (Minister for Immigration and Multicultural Affairs v Y (Unreported, Federal Court of Australia, Davies J, 15 May 1998); V v Minister for Immigration and Multicultural Affairs [1999] FCA 428; (1999) 92 FCR 355); C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430; (1999) 94 FCR 366).
10 It was said by Guy Goodwin-Gill in a passage approved both in this Court and the Supreme Court of Canada, that political opinion includes ‘any opinion on any matter in which the machinery of State, government, and policy may be engaged’ (The Refugee in International Law (2^nd ed, 1996) at 49 cited in Saliba at 46 and The Refugee in International Law (1^st ed, 1983) at 31 cited in Canada (Attorney-General) v Ward [1993] 2 SCR 689 at 746). It applies to opinion where a government or ruling party is the persecutor, but not necessarily so. It may also be a group unrelated to the government or opposed to it as was the case in Ward.
11 There was nothing raised before the Tribunal that went beyond the appellant’s objection to the activities of the hooligans, nor was it suggested to the Tribunal that the acts of the hooligans were more than criminal acts. There was no action on the part of the appellant other than being involved in a dispute concerning the criminal activities that would imply a political opinion.
12 There was nothing in the evidence to indicate that a political opinion had been imputed to the appellant by the hooligans or that their motivation was a perception or imputation of a political opinion. There was nothing to connect the activities of the hooligans with the government. There was nothing to suggest that the appellant had complained to any person about those activities and, apart from a general assertion that Biharis enjoy no protection from the government, there was nothing to suggest that the appellant made a complaint or sought protection from the hooligans or that such protection was denied or that the government was unable or unwilling to protect the appellant from the hooligans.
13 In short, the appellant did not raise matters to the Tribunal which articulated or raised a claim to persecution based on political opinion. No such claim was expressly made nor did it arise clearly on the material before the Tribunal (NABE at [60]). There was no error on the part of the Tribunal in failing to consider such a claim. The Tribunal dealt with the matters raised by the appellant in the context of the claim made by him to the Tribunal. Not only was the Tribunal unaware that such a claim arose from the factual matters raised by the appellant, but so also was counsel who appeared before the Federal Magistrate and her Honour.

Fear of persecution

14 The appellant told the Tribunal that if he returns to Bangladesh the hooligans will try to kill him. He also said that Biharis have no human rights in Bangladesh and no protection. However, he made no claim that he had sought protection from any person. The Tribunal expressed some doubts about whether the appellant had confrontations with the hooligans, but accepted that he had objected to their illegal activities within the camp. The Tribunal expressed the view that if they had wished to harm the appellant they would have already done so. The appellant claimed no harm to himself.
15 The appellant does not challenge the Tribunal’s factual conclusions but contends that the Tribunal was obliged to and did not consider whether the appellant had a well-founded fear of persecution on return to Bangladesh. Mr Karp, who appears for the appellant, pointed to matters such as the sincerity of the opinion held by the appellant and whether he would be expected to re-engage in his activities on his return to Bangladesh. However, the Tribunal concluded that there was nothing in the evidence to indicate that the appellant has suffered treatment amounting to persecution in the past and nothing in the evidence to indicate that there is a real chance that the appellant would face treatment amounting to persecution if he returns to Bangladesh.
16 The evidence cited by the Tribunal and referred to in its findings and reasons included evidence of the confrontations with the hooligans involved in illegal activities in the camp. The finding of the Tribunal was that there was no persecution. Even if it could be argued that the objection to criminal activity amounted to political opinion, the absence of any finding of persecution means that the appeal cannot succeed even if leave is granted to file the amended Notice of Appeal.

Conclusion

17 No explanation for the failure to raise the new ground below was given by the appellant other than the briefing of new counsel. I accept that there is no detriment to the first respondent other than costs and that the potential consequences to the appellant are serious. I also take into account the integrity of the appellate process as discussed in VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; (2003) 129 FCR 168 at [23] and [24].
18 There is, in my view, little or no prospect of the proposed ground of appeal succeeding for the reasons I have given. Accordingly, the application for leave to file the amended notice of appeal is refused. There being no other ground of appeal pressed it also follows that the appeal is dismissed. The appellant is to pay the respondent’s costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 8 August 2006

Counsel for the Appellant:	L Karp
Counsel for the First Respondent:	A J McInerney
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	25 July 2006
Date of Judgment:	25 July 2006