MZWJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 169 (24 February 2006)

Last Updated: 8 March 2006

FEDERAL COURT OF AUSTRALIA

MZWJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 169

MZWJO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
VID1192 OF 2005

WILCOX J
24 FEBRUARY 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID1192 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZWJO APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	24 FEBRUARY 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant 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
VICTORIA DISTRICT REGISTRY	VID1192 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZWJO APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	WILCOX J
DATE:	24 FEBRUARY 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

WILCOX J:

1 This is an appeal from a decision of Federal Magistrate Riethmuller, dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal had affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, not to grant the applicant a protection visa.

2 Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice determined that this appeal be heard and determined by a single judge.

3 The appellant is a young man of Bangladeshi nationality, who came to Australia on 30 August 2001. Apparently, he entered the country on a student visa. On 27 June 2003, the appellant lodged an application for a protection visa. This was refused by a delegate on 14 October 2003. The appellant sought review of that decision by the Tribunal on 7 November 2003. After a hearing, the Tribunal made its decision on 5 April 2004.

4 The essence of the case made by the appellant was that he came from a family who were well-known supporters of the Awami League (‘AL’), one of the principal Bangladeshi political parties. The appellant said he had been actively involved in the student wing of AL between 1992 and 1994, and had held office as its General Secretary at his college. He claimed he had a high profile on campus, and was well-known through his campaigning at elections. He made claims of threats and harassment from thugs associated with the Bangladesh National Party (‘BNP’), over a long period of time.

5 The appellant told the Tribunal that he had left Bangladesh, in order to avoid harassment, in 2000, travelling to Lithuania, and in 2001, travelling to Thailand and the Philippines. He said those departures stemmed from continuing fear for his safety. He claimed to have been assaulted by BNP opponents and, after one such occasion, to have been hospitalised for three days. However, the Tribunal did not accept this evidence, or a document dated 12 March 2003, which the Tribunal described as having referred ‘in extremely vague terms’ to injuries and the treatment of the appellant almost two years earlier. The appellant also made claims to the Tribunal as to events, involving members of his family, which he believed had occurred after his departure from Bangladesh.

6 It is useful immediately to summarise the claims of the appellant in regard to himself, that were accepted by the Tribunal. At the outset of its summary of findings and reasons, the Tribunal said:

‘The Tribunal accepts that the applicant was a member of the AL and that he was active on his campus and in his local area in ways claimed by him. It also accepts that his family is well-known as AL supporters and that some relatives have held office as claimed by him.’

7 The Tribunal then expressed the view that the appellant’s departures from Bangladesh and voluntary returns, without having sought asylum in any of the visited countries ‘are inconsistent with the existence of a continuing fear of the applicant for his well-being’.

8 The Tribunal then referred to the document relating to the alleged 2001 injuries and indicated it did not accept it was genuine. The Tribunal commented that, even if the applicant was targeted in the past by BNP supporters in ways he claimed:

‘... the length of time since he held office with the AL and materials cited below indicating that AL supporters such as the applicant are not targeted nowadays leads the Tribunal to conclude that the applicant does not face a real chance of persecution now or in the foreseeable future by reason of his political opinion.’

9 After referring to the appellant’s claims about events in the year 2001, which were not accepted by the Tribunal, the Tribunal went on to deal with events which allegedly occurred after the appellant arrived in Australia.

10 The Tribunal provided a summary of the evidence on these matters, as follows:

‘While accepting that a family business was burned down during 2002 and that the applicant’s parents were injured, the notion that the fire was deliberately lit by BNP supporters to seek political revenge remains merely speculative, notwithstanding the allegations contained in written material submitted by the applicant. The evidence before the Tribunal does not satisfy it that the applicant’s parents – let alone the applicant himself who had left Bangladesh the year beforehand – were targeted by reason of their political opinion or for any other Convention reason. Moreover, it appears that police took what action was open to them, on the basis of the evidence available to them, to track down the alleged perpetrators and to bring them to justice. In all the circumstances the Tribunal does not accept that the fire was directed against the applicant or his parents for any Convention reason. If it were, it is apparent from information cited below that they would have been able to call upon the protection of the State as, indeed, they did.

Similarly, while accepting that the applicant might not have had contact with his parents and a brother-in-law for some considerable time the Tribunal does not accept the notion that they were kidnapped by BNP supporters is anything other than speculation. There is no evidence to satisfy the Tribunal that relatives of the applicant were kidnapped for any Convention reason such as to expose the applicant himself to a similar fate. Moreover, information cited below indicates that BNP supporters are not targeting AL supporters in such ways and that, if they were, it would be possible to call upon the protection of the State.

Even if the Tribunal were to accept that a cousin of the applicant was shot in early 2002 it does not accept that the applicant, who left Bangladesh the previous year, was the actual target, or that the death of his cousin indicates the applicant would be targeted by reason of his political opinion. In light of the applicant’s capacity to depart Bangladesh legally, his actual profile, the length of time since his prominent political activism, and the length of his absence from Bangladesh, the Tribunal does not accept that he is sought by BNP supporters or police officers or others in order to persecute him for any Convention reason.’

11 The Tribunal then referred to country information, citing five reports bearing dates between 13 December 2001 and 6 June 2003. The Tribunal summarised the thrust of these reports in the following way:

‘Aforementioned information indicates that political violence is common around the time of elections in Bangladesh, but abates thereafter. Reports of violence in relation to the 2001 elections indicate that the principal targets were members of minority religious groups, mainly Hindus, and some leaders and activists with the AL. The leaders of the BNP and AL recently vowed publicly to crack down on supporters within their ranks who are prone to use violence. There is no evidence that AL supporters are being targeted for violence by BNP supporters.’

12 I note in passing that the country information reveals that there was a Bangladeshi national election in early October 2001. The BNP was successful, ousting the AL government, which had held office for some five years. A coalition lead by the BNP was installed in government on 10 October 2001. After noting the country information, the Tribunal member said this:

‘In considering all available material, including that submitted by the applicant, the Tribunal concludes that he would not face a real chance of persecution for any Convention reason.’

13 The basic submission put by Mr R Strong, counsel for the appellant, was that the Tribunal erred in its treatment of the material before it concerning events in 2002. The information about these events was apparently entirely hearsay information obtained by the appellant. The events had taken place after the appellant arrived in Australia. Notwithstanding these circumstances, the Tribunal seems to have been prepared to accept the fundamentals of the factual claims made by the appellant: that a family business was burnt down during 2002; that the appellant's parents were injured and subsequently disappeared, at least so far as the applicant is concerned, and that, some time in early 2002, a cousin of the appellant was killed. The question the Tribunal had to determine was whether it had any material that would lead it to believe there was a possible relationship between these events and the family’s known support of AL.

14 Apparently, the appellant put nothing before the Tribunal to assist it to make that connection. However, Mr Strong submitted to me that, once having found the family were AL supporters, the Tribunal should have taken into account these events in assessing the chance of the appellant being injured if he returned to Bangladesh. Mr Strong cited several authorities. Perhaps the judgment that is most useful to his argument is that of North and Madgwick JJ in Kalala v Minister for Immigration and Multicultural Affairs (2001) FCA 1594, 114 FCR 212. At [6], their Honours said:

‘It is, however, commonly the case that the decision-maker either cannot satisfactorily establish what has occurred in the past or actually reaches, as a matter of probabilities, a conclusion as to the past which is adverse to an applicant's claims. In either case it follows, from the lack of necessity for a balance of probabilities assessment of the validity of the fear, that this cannot, by itself, be an end of the matter. There may be a real and substantial basis for thinking that past events, having a character relevant for the applicant's future, may have occurred notwithstanding either that the truth of the matter cannot be established or that it is actually unlikely that those events did occur. The same is true of imputing a relevant character to past events which themselves are either not in doubt or as to which it has been recognised that there is at least a real and substantial basis for concluding that they may have occurred.’

Their Honours went on to point out that the Tribunal is not concerned with probabilities; events having a probability or possibility factor of less than 50 per cent, perhaps well under 50 per cent, may be significant. At [7], their Honours said:

‘If there is a real chance that some event occurred or bore a certain character, that circumstance may powerfully affect the assessment of whether fear of future harm befalling an applicant, if returned to his or her country of nationality, is well-founded.’

15 It will be noted that, in [6], their Honours twice used the phrase ‘a real and substantial basis’ for thinking, or concluding that events may have occurred. In the present case, the question is not so much whether there is a real and substantial basis for thinking that the fire, injuries and disappearance of the parents and death of the cousin occurred. The Tribunal was prepared to assume they did. The question was whether those events cast light upon the appellant’s possible future; that is, whether those events indicated ongoing persecution of the family for political reasons.

16 The appellant’s problem in arguing the Tribunal erred in failing to answer this question affirmatively is the difficulty in finding a real and substantial basis for thinking the events were Convention-related. Nothing in the events themselves points to a Convention connection.

17 Surprisingly, the appellant was unable to give the Tribunal any information about the context of the claimed events. For example, although he claimed the family business was burnt down, he was unable to say anything about the circumstances of the fire. He did say it had been reported to the police. However, he did not know what action, if any, the police had taken; whether there was an investigation; if so, what it revealed; whether anybody had been arrested; or so on. There was simply no context to enable the Tribunal to make an evaluation as to whether this was arson, or an accident; and, if arson, whether it was related to the fact that the family were known to be AL supporters.

18 Similarly in regard to the injuries and apparent disappearance of the parents the Tribunal also lacked information. It seems extraordinary that, almost two years after the alleged disappearance of the parents, the appellant was able to say no more than that he had not heard from them in that time. Maybe there was a Convention connection, because of the parents’ known political opinion, but I find it impossible to say the Tribunal erred in failing to find there was a real and substantial basis for thinking these events had a Convention nexus. The same comment may be made in relation to the cousin. Apparently no information was put before the Tribunal as to the cousin's political profile, if any. Accordingly, there is no basis upon which the Tribunal could have said there was a real and substantial basis for thinking the cousin's death was Convention-related.

19 It is important to note that the Tribunal went on to consider what the evidence showed in regard to political reprisals in Bangladesh. I have already quoted the Tribunal’s summary of the country information. The information indicates that political violence is common around the time of elections in Bangladesh, but abates thereafter. There seems to be no country material indicating active political persecution between election periods, the sort of activity that would have been necessary to support a connection between the family's political persuasion and the assumed events of 2002.

20 The facts concerning a refugee claim are for the Tribunal to determine. The Tribunal falls into error if it fails to take into account relevant material. I do not disagree with anything said by North and Madgwick JJ in the passages quoted above. However, in determining whether there is a real and substantial basis for thinking that past events are Convention-based, the Tribunal’s findings concerning other evidence in the case, including country information, are of the greatest importance. I do not think that, in this case, the Tribunal fell into jurisdictional error. The magistrate was correct in dismissing the application for review.

21 The appeal will be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 8 March 2006

Counsel for the Appellant:	Mr R Strong
Counsel for the Respondent:	Mr R Knowles
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	24 February 2006
Date of Judgment:	24 February 2006