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1 The matter before the Court is an appeal from a decision of a judge of this Court (Lindgren J), in which his Honour dismissed two proceedings that were then before him.

2 The first proceeding (NSD 121 of 2004) was an application for prerogative relief in relation to a decision of the Refugee Review Tribunal (‘the RRT’) which affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), the respondent to this appeal. The delegate had refused to grant to the appellant a protection visa. The RRT shared the view of the delegate that the appellant had not demonstrated he was a refugee within the meaning of the Convention relating to the Status of Refugees (‘the Convention’).

SZBNG v Minister for Immigration and Multicultural and Indigenous Affairs [

SZBNG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 261 (20 August 2004)
Last Updated: 23 September 2004

FEDERAL COURT OF AUSTRALIA


SZBNG v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 261



































SZBNG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 358 of 2004


WILCOX, MADGWICK and EMMETT JJ
20 AUGUST 2004
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 358 of 2004


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: SZBNG
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: WILCOX, MADGWICK and EMMETT JJ
DATE OF ORDER: 20 AUGUST 2004
WHERE MADE: SYDNEY


THE COURT ORDERS THAT:


1. The appeal be allowed.
2. The orders made by Lindgren J in matter NSD 121 of 2004 on 2 March 2004 be set aside and, in lieu thereof, it be ordered that the decision of the Refugee Review Tribunal made on 18 December 2002 be set aside and an order be made in the nature of mandamus for review of the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs.
3. In relation to the orders made by Lindgren J in matter N 2487 of 2003, the matter be reserved for mention before Wilcox J on Thursday, 9 September 2004 at 9.30 am.









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 N 358 of 2004


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: SZBNG
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGE: WILCOX, MADGWICK and EMMETT JJ
DATE: 20 AUGUST 2004
PLACE: SYDNEY


REASONS FOR JUDGMENT

WILCOX J:

1 The matter before the Court is an appeal from a decision of a judge of this Court (Lindgren J), in which his Honour dismissed two proceedings that were then before him.

2 The first proceeding (NSD 121 of 2004) was an application for prerogative relief in relation to a decision of the Refugee Review Tribunal (‘the RRT’) which affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), the respondent to this appeal. The delegate had refused to grant to the appellant a protection visa. The RRT shared the view of the delegate that the appellant had not demonstrated he was a refugee within the meaning of the Convention relating to the Status of Refugees (‘the Convention’).

3 Following the decision of the RRT, the appellant made an application for a Bridging E (Class WE) visa. This was refused by a delegate of the Minister. The appellant applied to the Migration Review Tribunal (‘the MRT’) for review of that decision. The MRT made an order setting aside the delegate's decision and remitted the application for a bridging visa to the delegate for approval, subject to a requirement that the appellant provide security in the sum of $10,000. The appellant was apparently unable to provide that security. Consequently, he commenced a second proceeding in this Court (N 2487 of 2003) by which he challenged the decision of the MRT to require the security.

4 Both matters came before Lindgren J. As I have indicated, they were both dismissed.

5 The primary issue considered by his Honour was the appellant’s application for review of the decision of the RRT. His Honour set out the grounds raised by the appellant in his application for relief and made a comment about the RRT’s reasons being ‘unsatisfactorily brief’. At para 12 of his reasons for decision, his Honour said:

‘One would not wish to encourage unduly prolix reasons but it is important that a statement of reasons, although they perhaps cannot be expected to satisfy a disappointed applicant, will give an indication that the RRT has indeed considered the important claims made. I do not say that the RRT did not consider them in this case. Moreover, having read the applicant's statement which supported his application for the visa, I have some sympathy with a statement made by the Member that he found the applicant's evidence "confused and unconvincing". Nonetheless, the applicant did provide a five page (29 paragraph) statement which was disposed of by the RRT within the space of 11 paragraphs.’

His Honour then set out the 11 paragraphs from the RRT’s reasons.

6 Like Lindgren J, I would not wish to encourage prolix reasons. However, I think that, in the present case, the problem goes beyond undue brevity. It seems to me the RRT member simply failed to deal with the appellant’s allegations of past persecutions, or at least the bulk of them, that were raised in the 29 paragraph statement to which Lindgren J referred.

7 The appellant’s statement is reproduced in the appeal papers. It is a carefully constructed document that provides a detailed account of the appellant’s life. I do not purport to summarise the whole of the statement. It is sufficient to note certain key features.

8 The appellant claims to be a citizen of Bangladesh, born in 1962 into ‘a middle class Hindu family’. He says his mother was a religiously devout woman; she sometimes arranged kirtan (prayer) at her home. As the family was living in a predominantly Muslim country, this created problems for them.

9 The appellant sets out an account of what happened to the family over the years, commencing with their house being burnt down and looted in 1971. The appellant’s father was arrested, tortured and thrown into a river. Thereafter, his father lost his job because of his Hindu faith. The appellant suffered harassment at school. He sets out what happened to him at college, which he left in 1987.

10 On 23 March 1986, according to the appellant, his mother and other religious workers were performing religious recitations when Muslim fundamentalists set fire to the house and threw brick batons at them. All the occupants of the house were injured. The appellant’s mother was so badly injured that she was admitted to hospital. Apparently, she became dumb and died the following year. The appellant refers to the effect of this event upon his father.

11 The appellant also sets out details of political events in Bangladesh. He was a member of the Bangladesh Nationalist Party (‘BNP’), he said, although some 95 percent of the Hindu population supported the opposing Awami League. According to the appellant, he was attracted to the policies of the BNP, despite the fact that this made him unpopular with the bulk of his co-religionists.

12 The appellant’s account goes on to describe an incident in 1992, in which his father was beaten seriously, as was the appellant. They were both admitted to a clinic. The appellant claims that his father was terribly shocked and died a few months later.

13 The appellant also recounts being attacked by ‘Awami goons’ during a half-day strike in December 1994. The appellant’s brother reported the incident to the police station, but the police, in effect, blamed the appellant for being in a position where he could be attacked. According to him, the police made no attempt to investigate the incident.

14 The story goes on. There was allegedly an incident on 13 June 1996 when his residence was ransacked and looted, one of his sisters was abused and another brother was beaten severely. The appellant continued his political activities and there was action by Awami members against him.

15 Finally, on 26 December 1998, the appellant was attacked by a group of Chaatra League activists at a railway station. There was fighting and the appellant was knocked unconscious, as a result of which he ended up in hospital. He then decided to leave the country.

16 As will be apparent, this is a very detailed account of the appellant’s history; unusually so. Of course, it may be untrue, in whole or in part. I have no belief about that because it is not a matter for the Court to investigate. However, the statement is an account of events which, on its face, raises claims of persecution within the meaning of the Convention, warranting proper consideration by the RRT. Against that background, I turn to the reasons given by the RRT member for rejecting the appellant’s claim of refugee status.

17 First, the member said he was satisfied that the appellant was a Bangladeshi national, was a Hindu and had been a BNP supporter. The member then said at p 14 of his reasons:

‘He claims that he is unwilling to return to Bangladesh as he fears that various groups of Muslims will kill him for a variety of reasons. I found the Applicant's evidence regarding these groups confused and unconvincing. I am not satisfied that the Applicant was being truthful.

In any event, I am not satisfied that any such fear of persecution is well founded.

I accept that the independent evidence shows that Hindus in Bangladesh have been suffering increasing harassment and harm from fundamentalist Muslims and that the new government has lessened the general level of religious tolerance that has prevailed in Bangladesh.’

18 The generality of these remarks should be noted. In saying that he found the appellant's evidence regarding the Muslim groups to be confused and unconvincing, the member did not identify which groups he was talking about. It is far from clear that the member was looking at each of the incidents that was referred to in the statement, each of which presumably involved different groups of attackers.

19 The member went on:

‘I also note that it many [sic] years since the Applicant was at college. His application form states that he left college in 1987, twelve years before he left Bangladesh. It would seem likely that if his enemies from college days had wished to harm him that they would have done so by now.

I am not satisfied that there is any real chance that any enemies he may have from college days will persecute him if he returns to Bangladesh. Nor am I satisfied that the Applicant, a past supporter of the BNP, would be denied protection from Awami League thugs by a BNP-led Government.’

20 It is true that the appellant said he left college in 1987 and that he had referred to problems that had occurred when he was at college. However, as will be apparent from my brief account of his statement, the appellant also made claims about several serious events that allegedly occurred after he left college. These events occurred right up to a month or so before he left Bangladesh for Australia. It would be a total misunderstanding of the appellant’s case to regard it as being based only on persecution that he had suffered before the end of 1987, while he was at college. Further, the RRT member’s reference to not being satisfied that the appellant would be ‘denied protection from Awami League thugs by a BNP-led government’ seems to overlook the appellant’s claims about being attacked in December 1994, when the police were indifferent to his plight.

21 The RRT member went on:

‘I am not satisfied that his involvement in BNP politics and campaigns will put him at any risk of persecution should he return to Bangladesh.

I am not satisfied that there is any real chance that he will be killed by Muslims who want all Hindus to leave Bangladesh. I note that there many [sic] millions of Hindus in Bangladesh, and while some Muslims may want them gone there does not seem to be any evidence that Hindus generally are at risk of persecution.’

22 In his reasons for decision, the RRT member quoted country material dealing with the general situation of Hindus in Bangladesh. It may well be that this material justifies the statement that there are ‘many millions of Hindus in Bangladesh’ and that ‘there does not seem to be any evidence that Hindus generally are at risk of persecution’. However, the appellant’s claim went well beyond saying he was a Hindu in Bangladesh. He also claimed to have come from a family in which his mother, at least, organised prayer sessions, practising her religion in a public way; a way that had caused her to be persecuted to the point where she had been fatally injured.

23 Furthermore, the appellant claimed he was a Hindu who had taken the unusual path of actively supporting the BNP, rather than the Awami League, and that this had caused problems for him even in the Hindu community. In that situation, it was not enough for the RRT member to talk about the situation of Hindus generally. The member needed to consider the position of this particular Hindu person.

24 The RRT member concluded by dealing with a claim by the appellant about people wishing to harm him because of an unrepaid loan. I do not criticise the member's view that this would not be persecution based on a Convention reason.

25 It has been said time and again, by members of both the High Court of Australia and this Court, that courts should not be astute to find error in the reasons for decision of an administrative tribunal, such as the RRT. I totally agree with that approach. If it is apparent to the Court, in a particular case, that the relevant tribunal considered the whole of a person’s claims and reached findings about them, it is immaterial that the tribunal’s reasons might be sparsely or inelegantly expressed or that the reviewing judge might not have reached the same findings, if he or she had been the judge of the facts. The Court does not review factual findings of a body like the RRT.

26 However, if the situation is that the Court is satisfied that relevant claims have not been considered by the administrative tribunal – that is to say that the case that was put to that tribunal by the particular applicant was not adjudicated upon – then the Court must find jurisdictional error.

27 I am satisfied that the deficiencies in the present case are so great as to warrant that conclusion. Accordingly, I am of the opinion that the decision of the RRT should be set aside and an order in the nature of mandamus be made requiring the RRT to reconsider the decision of the Minister’s delegate. It will be for the Principal Member of the RRT to determine whether it is appropriate for the reconsideration to be made by the member who previously dealt with the matter or some other member.

28 In relation to the second matter, the challenge to the decision of the MRT, little needs to be said. Lindgren J understandably thought it was not necessary for him to deal with it at length. It was, apparently, common ground before him that, if the decision of the RRT stood, then it would be futile to remit the application for the bridging visa, on the basis that it would not be open to the MRT to eliminate the requirement of the security of $10,000. As I understand the situation, that picture changes if the RRT decision is set aside.

29 The course that seems appropriate is for this Court to reserve the matter of the appeal against the decision of the MRT. There may be a question whether the matter has been properly raised before this Full Court, as distinct from before Lindgren J, where it was clearly raised.

30 We understand from Mr G Kennett of counsel, who appears for the Minister, that there is not likely to be any reason why the appellant would be unable to make a fresh application for a Bridging E (Class WE) visa and have this application considered on its merits, against the background that there is, at least for the moment, no adverse RRT decision against him. A possible alternative is that the result of setting aside the decision of the RRT would be to reactivate the appellant’s earlier application for a Bridging E (Class WE) visa.

31 It seems to me preferable for the Court to leave these matters for the parties to explore and that the appropriate order would be for the matter of the bridging visa to be reserved, perhaps for mention before a single judge in about three weeks time. Subject to that matter, I would favour orders that set aside the orders made by Lindgren J and, in lieu thereof, order that the decision of the RRT be set aside and that an order in the nature of mandamus be made for the RRT to review the decision of the delegate of the Minister. As the appellant was not legally represented, no question of costs of the appeal arises.


I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.



Associate:

Dated: 23 September 2004




IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 358 of 2004


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: SZBNG
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: WILCOX, MADGWICK and EMMETT JJ
DATE: 20 AUGUST 2004
PLACE: SYDNEY


REASONS FOR JUDGMENT

MADGWICK J:

32 I agree with the orders proposed by the presiding judge and his reasons. I just add a couple of comments.

33 First, Mr Kennett rightly reminds the Court of the difference between a tribunal not referring to particular factual contentions and some of the evidence put forward by an appellant, and the failure to deal with what can fairly be called integers of an appellant's claim. Mr Kennett's submission, inferentially, is that any shortcoming by the RRT member fell in the former category of errors, which do not sound in a form of jurisdictional error, rather than the latter.

34 In my conclusion, there was a failure to deal with the integers of the claim. The appellant's main claims, one would think, since they were what were reduced to writing and recounted in some detail, amounted to a claim, so far as possible persecution as a Hindu was concerned, that there was a systemic risk to active and reasonably prominent Hindus of whom he and his family had been examples, in addition to particular fears that he expounded on in his oral evidence, from particular groups of Muslim people, including possibly quite "fundamentalist" Muslims. That integer of his claim was not dealt with.

35 Further, the RRT member, it would appear, raised a concern that, as he put it:

‘...there [are] many millions of Hindus in Bangladesh, and whilst some Muslims may want them gone there does not seem to be any evidence that Hindus generally are at risk of persecution.’

Despite the RRT member's finding that:

‘Hindus ... have been suffering increasing harassment and harm from fundamentalist Muslims and ... the new government has lessened the general level of religious tolerance that has prevailed in Bangladesh’,

it appears that the appellant’s adviser submitted, seemingly in answer to such concerns, that:

‘The applicant may be a target as he was a significant Hindu, a member of a regional committee and a teacher.’

36 In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 McHugh and Kirby JJ reminded those concerned with the administration of refugee law and assessment that it is not sufficient to exclude a claim of an individual who fears persecution as a member of a class, on the basis that members of the class generally are not at risk of persecution. The question always is: does the individual personally fear persecution for a Convention reason and, if so, is that fear well-founded? In the present case, the failure to deal with the adviser's submissions indicates to me a jurisdictional error in that regard.

37 The learned primary judge expressed himself as dissatisfied with the reasons of the RRT. His Honour said:

‘With respect, the reasons of the [RRT] are unsatisfactorily brief. One would not wish to encourage unduly prolix reasons but it is important that a statement of reasons ... will give an indication that the [RRT] has indeed considered the important claims made. I do not say that the [RRT] did not consider them in this case.’

38 His Honour was not asked to consider that matter by the actual grounds asserted by the appellant before him. The grounds owe a lot to a layman's effort to frame in generalities his complaints in a way that might possibly touch jurisdictional matters and are not really helpful. We have had the advantage of the ability to discuss the matter between ourselves, and to raise concerns felt by members of the bench in argument with counsel for the Minister. There is no criticism of the learned primary judge involved in our reaching a different conclusion from that reached by him.


I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.



Associate:

Dated: 23 September 2004




IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 358 of 2004


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: SZBNG
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: WILCOX, MADGWICK and EMMETT JJ
DATE: 20 AUGUST 2004
PLACE: SYDNEY


REASONS FOR JUDGMENT

EMMETT J:

39 I am disposed to agree, although with some reservation, particularly having regard to the standing of the judge below. In fairness to his Honour, it should be said that the basis upon which this Court has concluded that there were inadequacies on the part of the RRT was not fairly put to his Honour. The application for review contained some 13 grounds which his Honour dealt with fairly briefly. After rejecting three of them, specifically on the basis that they may contain allegations of bias, his Honour observed that, with the exception of the first ground, the remaining grounds seemed to seek to challenge the RRT’s failure to be satisfied that the appellant was being truthful.

40 However, on a more careful reading of one of the grounds it may be that ground does in fact raise the matter to which my brethren have referred. Ground 3 says:

‘RRT did not require the comment regarding the all of my claims’.
That of itself does not make sense, but it may well be a complaint that the RRT did not in fact give proper consideration to all of the appellant's claims as they have been particularised by Wilcox J.

41 I am also mindful of the distinction between contention, on one hand, and the evidence in support of a contention on the other, a distinction that is sometimes difficult to draw in particular circumstances. On one view the only contention before the RRT was that the appellant was, owing to a well-founded fear of being persecuted for a Convention reason, unable or unwilling to avail himself of the protection of the government of Bangladesh. The RRT, in the usual way, set out the four elements of that question, one of which of course is that any fear of persecution must be a well-founded fear. That adds an objective requirement to the requirement that an applicant must in fact hold such a fear. The RRT stated, in the briefest of terms, the contentions that went to that matter. One of those contentions was summarised by the RRT in these terms:

‘[The appellant] was involved in BNP politics. He was not a big leader but he did inspire people to join the BNP. During the 1995 movement he worked for the BNP.’
42 In fact, as Wilcox J has said, there was some detailed evidence in the appellant’s statement concerning those matters. The appellant’s claims in that regard, were dealt with even more briefly by the RRT. The RRT simply said:

‘I am not satisfied that his involvement in BNP politics and campaigns will put him at any risk of persecution should he return to Bangladesh.’
43 On balance, I do not consider that the RRT fairly deals with one of the integers in the appellant’s contention that he had a well-founded fear, namely, the question of whether or not the particular circumstances, as alleged in the appellant’s statement as having taken place on 13 June 1996 and subsequently on 26 December 1998, actually occurred. Certainly the particulars of the events on those dates are evidence of matters that might or might not support a contention. I do not, however, consider that a fair reading of its reasons indicates that the RRT gave adequate consideration to the integer in the appellant's contention that he feared persecution by reason of his involvement in BNP politics.

44 I agree with the orders proposed by Wilcox J.


I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.



Associate:

Dated: 23 September 2004




The Appellant appeared in person.




Counsel for the Respondent: Mr G Kennett



Solicitor for the Respondent: Blake Dawson Waldron



Date of Hearing: 20 August 2004



Date of Judgment: 20 August 2004
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