SZCCZ v Minister for Immigration and Citizenship [2007] FCA 1089 (6 August 2007)

Last Updated: 7 August 2007

FEDERAL COURT OF AUSTRALIA

SZCCZ v Minister for Immigration and Citizenship [2007] FCA 1089

SZCCZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1251 OF 2006

COWDROY J
6 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1251 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCCZ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	6 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
2. The appeal be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).
3. Pursuant to Order 62 rule 4(2)(c) of the Federal Court Rules the appellant pay the costs of the First Respondent in the sum of $ 3500.

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 1251 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCCZ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE:	6 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a decision of Federal Magistrate Barnes delivered on 7 June 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 4 September 2001. The Tribunal had affirmed a decision of a delegate of the then Minister for Immigration and Multicultural Affairs (‘the Minister’) to refuse to grant a protection visa to the appellant.

2 The appellant did not appear at the hearing before the Court today. Accordingly the Minister has applied to have the proceedings dismissed for failure of the appellant to attend the appeal hearing pursuant to s 25(2B)(bb)(ii) of the Federal Court of the Australia Act 1976 (Cth). Despite such application, the Court will consider the appellant’s claims on the material before it.

BACKGROUND

3 The appellant is a citizen of Bangladesh who arrived in Australia on a visitor’s visa on 3 March 1999. He applied for a protection visa on 16 April 1999 and was granted a Bridging Visa A (‘the bridging visa’). By letter dated 31 May 1999 the appellant was notified that his application for a protection visa had been refused by the Minister. On 28 June 1999 the appellant applied to the Tribunal for a review of the Minister’s decision.

4 The appellant claimed to have a well founded fear of persecution from the Awami League because of his political opinions and as a member of the Bangladesh National Party (BNP).

PROCEEDINGS BEFORE THE TRIBUNAL

5 The appellant attended a hearing before the Tribunal on 31 July 2001 and gave oral evidence in support of his claims of persecution. In reaching its decision, the Tribunal had regard to several sources of independent country information relating to violence and the forgery of documents in Bangladesh and the political climate surrounding the 1996 elections.

THE DECISION OF THE TRIBUNAL

6 The Tribunal accepted the appellant was a Bangladeshi national who supported the BNP and was involved in political activities at a low-level from the late 1980s onwards and that he was involved in the 1996 elections. However, the Tribunal found that there were inconsistencies in the appellant’s evidence and that some of his claims were implausible. The Tribunal also found that if he returned to Bangladesh there was only a remote chance that the appellant would re-engage in political activities and that in any event the appellant could support the BNP without becoming involved in violent activity. The Tribunal found that ‘the evidence does not suggest that those involved in non- violent political activities are at risk of being attacked because of those activities’.

7 Accordingly the Tribunal found that the appellant did not have a well-founded fear of persecution for a Convention reason. The Tribunal affirmed the decision of the Minister finding that the appellant was not a person to whom Australia owed protection obligations.

APPLICATION TO THE FEDERAL MAGISTRATES COURT

8 The appellant claimed that his previous migration advisor had neglected to inform him of the Tribunal’s decision until several months after it had been handed down. The appellant, following receipt of advice that he was out of time to file an application for judicial review in the Federal Magistrates Court, applied to the Minister under s 417 of the Act for a more favourable decision than that delivered by the Tribunal. This application was unsuccessful. After retaining a different migration advisor the appellant filed an application for judicial review in the Federal Magistrates Court on 9 December 2003 in respect of the Tribunal’s decision. On 9 February 2006 an Amended Application was filed by the appellant in Court. The appellant raised two grounds, with the first ground consisting of three particulars.

9 The first ground asserted by the appellant was that the Tribunal failed to exercise its jurisdiction under the Act. Three particulars were provided in support of this ground.

10 The first particular claimed that the Tribunal asked itself the wrong question when it determined that it was possible to be involved in political activities in Bangladesh without being a victim of political violence.

11 The appellant’s second particular alleged that the Tribunal failed to consider that there were non-violent political demonstrations in Bangladesh; that not all attendees at a demonstration were necessarily violent; and that regardless of the appellant’s non-violent political involvement, there was nevertheless a real chance he could still suffer serious harm through such involvement. The appellant claimed that there was no basis for the Tribunal’s finding that those involved in non-violent political activities were not at risk of being attacked because of those activities. The appellant claimed that such finding was contrary to the appellant’s evidence and the country information.

12 The appellant’s third particular was that the Tribunal made a legal error of the kind discussed by the High Court of Australia in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 203 ALR 112 per McHugh and Kirby JJ at [57]-[59] and per Gummow and Hayne JJ at [75]-[77]. The High Court decided that it was wrong for a Tribunal to require an appellant to take steps to avoid persecution. Before the Tribunal in these proceedings, the appellant claimed that the Tribunal had classified the appellant as a non-violent political activist and formed the general view that non-violent activist faced no risk of harm because of their political activities. The appellant claims that the Tribunal did not conduct a proper review of the Minister’s decision since it rejected all of the appellant’s claims and did not consider his individual circumstances.

13 The second ground sought a declaration that the bridging visa granted at the time of his application for a protection visa remained in effect. The appellant asserted that the decision of the Tribunal was invalid and of no effect and in the alternative, that the notification of the decision did not comply with the mandatory requirements of the Act and thus the bridging visa was still in effect.

14 It was not in dispute before Barnes FM that the bridging visa would expire 28 days after notification of the Tribunal’s decision. However, since neither the appellant nor his authorised recipient attended the handing down of the decision before the Tribunal, notification was governed by s 430B(6) of the Act which stipulates that a copy of the decision must be given to the appellant within 14 days after the day on which the decision is handed down by one of the methods specified in s 441A.

15 It was contended by the appellant that s 441A was subject to s 441G which required that the notice must be sent to the appellant’s authorised recipient. The appellant submitted that the notification letter was incorrectly addressed. The authorised recipient was described as "MS Haque & Co" whereas the appellant had indicated in his Application for Review that the authorised recipient was "MD Sirajul Haque". Accordingly the appellant claimed that strict compliance required by the legislation was not met.

THE DECISION OF THE FEDERAL MAGISTRATE

16 Barnes FM considered the grounds and particulars raised by the appellant in his Notice of Appeal under three headings as follows:

Whether Tribunal asked itself the wrong question, ignored relevant evidence or no evidence

17 Barnes FM found that the appellant had not established that the Tribunal asked itself the wrong question. At [51] her Honour noted:

‘The Tribunal did not make a finding adverse to the applicant (that it was possible for him to avoid harm) as an alternative to a consideration of whether he had a well-founded fear of persecution for a Convention reason. Rather the Tribunal had regard to the fact that the applicant himself had said that he had not been and would not be involved in violence in rejecting his claims that he and his family were attacked in the past because of his political activities. In light of these findings it was open to the Tribunal to reject the claim that the applicant had been attached "for this reason [involvement in political activities] or at all" in the past (consistent with its rejection of his reliability in relation to essential elements of his claims) or that false charges had been lodged against him. Hence it was not satisfied that he had a well- founded fear of persecution arising out of his previous political activities in Bangladesh. It nevertheless went on to consider whether he had a well- founded fear of persecution arising out of his support for the BNP (JCP).’

18 In relation to the second particular, Barnes FM stated that (at [52]):

‘Nor did the Tribunal err in the manner suggested in the second particular. The Tribunal made neither an express or an implied finding in the form contended for by the applicant. Rather it noted, as part of a consideration of the independent evidence about violence in Bangladesh and in Bangladeshi politics, that the evidence before it did not suggest that those involved in non-violent political activities were at risk of being attacked because of those activities. The Tribunal’s finding in this respect was expressed as a negative – that the evidence did not suggest a risk for such a reason. The aspects of the information cited for the applicant are not, when taken together with the information about violence in the community generally, such that it can be said that the Tribunal ignored or failed to take into account the risk of violence to non-violent political campaigners or activists (given its view that the violence in politics reflected that in the community and that the evidence also suggested that it was possible to be involved in political activities without being involved in violence as a perpetrator or victim).’

19 In relation to the no evidence ground, Barnes FM stated (at [53]):

‘Further, it has not been established that jurisdictional error on the basis that there was "no evidence" the Tribunal fell into. The independent evidence was not used to find that non-violent political activists were not at risk of attack. Rather the Tribunal found an absence of any evidence to suggest that those involved in non-violent political activities were at risk of being attacked because of those activities. Such a finding does not (even if erroneous) give rise to the no-evidence ground.’

Whether error of the kind considered in Appellant S395/2002

20 Barnes FM found that the Tribunal had considered what would happen if the appellant re-engaged in political activities in Bangladesh in light of the appellant’s past activities and evidence from the appellant in relation to his aversion to violent demonstration. Her Honour stated (at [62] and [64]):

"However, as contended for the respondent, there was no finding that the applicant could avoid harm by being discrete, there was no imposition of a requirement to be discreet and no categorisation in the form or manner forbidden by Appellant S395. The Tribunal accepted some aspects of the applicant’s claims (his involvement in low-level non-violent political activities) but did not accept that he had been attacked for reason of his political activities or that the false charges had been lodged against him.
...
[W]hile finding that the applicant would be unlikely to re-engage in political activities, the Tribunal nonetheless considered what would happen if he did so. No jurisdictional error is established in this respect. The Tribunal addressed the future in light of its acceptance of the applicant’s stated commitment not to engage in violent political activities. It found, based on the position of the BNP as a legal political party that contests elections and is represented in Parliament, that the applicant could actively support the BNP without being involved in violence. This approach did not require or impose a condition on the applicant that he not engage in violence, but rather looked at his particular circumstances and formed a view that this is what he would do based on what he had said and done in the past. The Tribunal found that as the applicant had not in the past become involved in violence, if he did wish to become involved in politics "he would do so without being involved in violence". It also had regard to independent evidence to find that it was not inevitable that the applicant would become involved in violence and that he was not obliged to participate in violent demonstrations. It was of the view that if the applicant chose to become involved in any political activities he could openly participate in political activities and express his political opinion without subjecting himself or anyone else to violence. Importantly it stated: "this is what the applicant would choose to do". It was on this basis that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution arising out of his support for the BNP and that overall the chance he would face persecution for a Convention reason if he returned to Bangladesh was remote and unsubstantial."

21 Accordingly Barnes FM found that the Tribunal’s findings in relation to the likely future political activities of the appellant and its observation of the appellant’s commitment to non-violent political involvement in did not constitute a jurisdictional error on the part of the Tribunal.

Whether the appellant’s bridging visa remains in effect

22 Barnes FM found that the appellant had received a copy of the Tribunal’s decision four or five months after the date on which the Tribunal handed down its decision. Her Honour noted that the 28 days in which the bridging visa would remain current commenced from the date of actual notification. Since the appellant acknowledged receiving the Tribunal’s decision, any failure on the part of the Tribunal relating to notification, in that the letter was not addressed to the authorised recipient exactly as stated in the application, does not have the effect that the bridging visa remains in force. The bridging visa expired 28 days after the receipt by the appellant of the Tribunal’s decision: see subparagraph 010.511(b)(iii) of Item 010 of Schedule 2 to the Migration Regulations 1994. Consequently, Barnes FM dismissed the appellant’s application for a declaration that the bridging visa remains in effect.

APPEAL TO THIS COURT

23 The Notice of Appeal filed on 28 June 2007 in this Court raises the following grounds:

‘The learned Federal Magistrate erred by:

1. failing to find that the second respondent (the "Tribunal") failed or constructively failed to exercise its jurisdiction under the Migration Act 1958.
2. failing to find that the appellant’s bridging visa ‘A’ granted at the time of his application for a protection visa remained in effect.’

The particulars to these grounds in the Notice of Appeal are identical to those provided in the appellant’s Amended Application in the Federal Magistrates Court.

FINDINGS

24 It is well established that the definition of ‘refugee’ in the Convention has both subjective and objective elements. The task of the Tribunal is to determine whether the appellant has a well founded fear of persecution on the basis of his or her membership of a particular group as defined in the Convention. The objective question whether any such fear is well founded is determined by asking whether there is ‘real chance’ that the appellant, upon returning to his country of nationality, will suffer persecution on the basis of the particular Convention reason. In undertaking this task the Tribunal must not rigidly define an appellant as belonging to a defined category of persons, make a blanket determination of the likelihood of this group’s persecution and then proceed to use this as a formula by which to dismiss an appellant’s claims without considering the appellant’s individual circumstances (see Appellant S395/2002 203 ALR 112).

25 A consideration of the reasons of Barnes FM in relation to the appellant’s grounds of appeal does not reveal any such legal error by her Honour nor by the Tribunal. Her Honour correctly found that the Tribunal had made a determination on the appellant’s eligibility for a protection visa by applying the test based upon a consideration of all the relevant evidence and material before it relating to the appellant’s individual circumstances.

26 Her Honour correctly distinguished the facts in Appellant S395/2002 203 ALR 112 from the present circumstances when she noted that the Tribunal had not imposed any requirement on the appellant to behave in a certain way in any future political activities in which he may became involved if he returned to Bangladesh. The Tribunal had considered all of the material before it and the appellant’s individual circumstances in deciding whether the appellant had a well founded fear of being persecuted for a convention reason, namely his political opinion.

27 Barnes FM further did not err in dismissing the appellant’s claim for a declaration that the bridging visa remained in effect. Consistent with the approach of the Full Court in VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311; (2003) 204 ALR 80 where the Full Court considered that actual notification was notification for the purposes of calculating the time within which the appellant had to apply for review, her Honour found at [88] that:

‘While notification for the purposes of the Migration Act and Regulations includes deemed notification I am of the view that this does not mean that notification of the decision for the purposes of Subclause 010.511 [of Schedule 2 to the Regulations] excludes actual notification such as is admitted to have occurred in this instance.’

Her Honour found that the 28 days within which the appellant had to apply for review commenced from the time the appellant received actual notification of the Tribunal’s decision. The appellant conceded to having received this notification some four or five months after it was handed down, and thus the appellant’s visa expired 28 days after such time.

28 As the Court can find no error of law in the judgment of Barnes FM nor in the decision of the Tribunal, and because the appellant did not appear at the hearing, the Court dismisses the appeal.

29 The Minister has sought an order for costs in the sum of $3500. As such amount is within a reasonable range of costs the Court will make the order sought.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 6 August 2007

Counsel for the Appellant:	The appellant did not appear
Counsel for the Respondent:	Justin Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	6 August 2007
Date of Judgment:	6 August 2007