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[2000] FCA 76
Federal Court of Australia
2000-02-10
Gummow J, Moore J
Original judgment source is linked above.
REASONS FOR JUDGMENT Nature of present application 1 This is an application by Shahidul Islam ("the applicant") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 24 May 1999. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the applicant a protection visa. The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). Background 2 The applicant is a citizen of Bangladesh who arrived in Australia on 5 December 1996. On 10 December 1996 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 26 June 1997 the application was refused by a delegate of the Minister, and on 31 July 1997 the applicant sought review of that decision. Both the delegate and the Tribunal considered the circumstances of the applicant and whether the applicant was a refugee. Art 1A(2) of the Convention contains, for present purposes, the definition of refugee. It provides: "… the term "refugee" shall apply to any person who; … (2) owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality in being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it." Proceedings before the Tribunal 3 The essence of the applicant's case before the Tribunal was that he will be subjected to persecution if forced to return to Bangladesh because he has sought justice for the murder of his brother in 1986 and because he has been a member of the Freedom Party. The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and a consideration by Australian courts of what is comprehended by the definition of "refugee" and by the notion of "persecution". Reference was made to the judgments of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225 and MIEA v Guo (1997) 191 CLR 559 and to the judgment of the Full Court of this Court in Ram v MIEA (1995) 57 FCR 565 ("Ram's case"). 4 In relation to the meaning of "persecution" in the Convention the Tribunal said: "Second, an applicant must fear persecution. In Applicant A, Gummow J at 284 referred to the primary meaning of the term "persecution" in ordinary usage: "The action of persecuting or pursuing with enmity or malignity; esp the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such, with a view to the repression or extirpation of it; … Not every threat of harm or interference with a person's rights for a Convention reason constitutes "being persecuted". Mason CJ referred to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage." (Chan at 388) Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to systematic harassment, amounts to persecution if done for a Convention reason. In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures "in disregard" of human dignity. The persecution must have an official quality, in the sense that it is official or officially tolerated or uncontrollable by the authorities of the country of nationality. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors." 5 The Tribunal went on to note that the applicant's fear of persecution must be a well founded one. 6 The Tribunal considered the circumstances of the applicant in a section headed "Claims and Evidence". The Tribunal first noted that the applicant's claims were set out in written submissions to the Department, written submissions to the Tribunal and oral evidence given to the Tribunal. The Tribunal then set out what emerged from that material which can be briefly summarised. 7 As a student, the applicant was a member and officer of the Bangladesh Islamic Chatra Shibir ("the Shibir"). In 1986, the applicant's brother was killed at Chittagong Polytechnical Institute, allegedly by a rival group to the Shibir. The applicant claimed that he sought justice for his brother's death by various means and that this had made him the target of rival groups, who threatened him and told him to drop the case. In particular, the applicant claimed in an affidavit submitted after the hearing that shots were fired and a bomb detonated at a commemorative rally that he attended in 1987. As a result, the applicant claimed he saw no alternative other than to leave Bangladesh. When asked by the Tribunal when he ended his association with the Shibir, the applicant said, "I am still associated with them I was a member for a long time when I was a student, I am no longer a student but I still have an association with them and my brother had been a member and I have made speeches". The applicant appears to have ceased being a student in 1991, when he was awarded his Masters degree in Islamic History. The Tribunal noted that the applicant did not mention any of these matters in his original application to the Department. The applicant, who was assisted by a friend in completing the application, told the Tribunal that he did not mention them because he intended to provide details later.
8 The applicant claimed that, in 1990, he joined the Freedom Party. He claimed he became a local secretary, and visited villages to recruit members and workers. The applicant told the Tribunal that he joined "for protection" because the party was "on good terms with the [Bangladeshi National Party ("BNP")]", which assumed government in 1991. When advised by the Tribunal that it was incorrect to say that the Freedom Party and the BNP were "on good terms", the applicant was unable to say any more about these parties' political alliance. The Tribunal considered independent evidence about the Freedom Party contained in the Political Handbook of the World 1995 (Banks, Day and Muller eds, CSA Publications, New York) ("the Handbook") and "Ex-army men form new party in Bangladesh" (Xinhua General Overseas News Service, 3 August 1987) ("the article"), and questioned the applicant about his knowledge of the party. In particular, the Tribunal asked when the party was founded, to which the applicant replied that it was founded after the killing of Sheikh Mujibbir Rahman in 1975. On the basis of the Handbook and the article, the Tribunal found it was formed in 1987 by two participants in the killing. The Tribunal asked the applicant what the party's position on Islam was, to which the applicant replied, "it is not really an Islamic party". The Tribunal noted that the article stated "… the new party stresses Islam as the main basis of the political ideology". The applicant's answers led the Tribunal to conclude that the applicant had little understanding of the party. The applicant claimed he had been targeted for his involvement with the Freedom Party, which led to him being verbally abused and pushed out of a restaurant. The Tribunal considered a cable of the Department of Foreign Affairs and Trade ("DFAT") dated 7 May 1997 ("Bangladesh: Treatment of relatives of coup leaders", DA 1684) and put to the applicant the proposition that there was no evidence that ordinary members of the party were targeted. 9 The Tribunal considered the applicant's evidence and claims in a section in its reasons titled "Findings and Reasons". 10 The Tribunal dealt first with the death of the applicant's brother. The Tribunal found that in the 13 years since that event, the applicant had come to no significant harm, and that the applicant had done nothing significant to pursue the matter. The Tribunal also took the view that as no reference was made in the applicant's original application to the Department to the death or to the alleged bomb blast and shots at the 1987 rally, these events had little current significance for the applicant. Consequently, the Tribunal concluded that the applicant's fear of harm relating to his brother's death was not well founded. The Tribunal proceeded to state that even if the applicant did pursue the matter and his brother's killers had threatened or harmed him, such action by them was not Convention-related. The killers were motivated to stop him pursuing the matter, not by reason of the applicant's political opinion. Moreover, the Tribunal did not accept that the claimed threats were of such seriousness as to amount to persecution within the meaning of the Convention. Overall, the Tribunal considered that the applicant had contrived this aspect of his claim. 11 The Tribunal considered next the applicant's claimed membership of the Freedom Party. The Tribunal viewed the applicant's claim that he joined the party to seek protection because it was in alliance with the BNP as nonsensical. First, there was no evidence of an alliance between the Freedom Party and the BNP. And second, it was a "minority party of minor influence or electoral significance", so it made no sense that anyone would join it for protection. The Tribunal noted that the applicant, when questioned by the Tribunal, had been ignorant about the Freedom Party and its background, and found that if the applicant had been an active worker of the party as he claimed, he would be expected to know more. On this basis, the Tribunal concluded that the applicant was neither a member of, nor held any position with, the party, and that he had fabricated that claim. The Tribunal proceeded to note that even if the applicant had been a member, there was independent evidence in DFAT cable DA 1684 dated 7 May 1997, which had been put to the applicant, that although some leaders of the party had been arrested and prosecuted, the party's electoral insignificance meant it attracted little attention from the government, and there was no evidence that rank and file members were targeted for harassment. Last, the Tribunal noted that the harm the applicant claimed to have suffered, namely being verbally abused once and being pushed out of a restaurant, did not amount to persecution within the meaning of the Convention.
The Application for Judicial Review 12 At the hearing the applicant was represented, with leave of the Court, by Dr Rashid Raashed who made submissions on behalf of the applicant. Dr Raashed was aware that the proceedings in this Court were by way of judicial review which did not involve merits review. As I understood the submissions of Dr Raashed, which were developed by reference to written submissions the applicant had prepared dated 8 October 1999, six issues were raised. I now deal with each in turn. 13 In its consideration of the consequences of the death of the applicant's brother, the Tribunal said that nothing of significance had happened to the applicant and also the applicant had never been physically harmed. It was submitted by the applicant that these findings were not open on the evidence as the applicant had given evidence about having been evicted from a restaurant and being present at a rally where a bomb exploded. Both matters were averted to by the Tribunal in its reasons and are not at odds with the findings just referred to made by the Tribunal. Even assuming that a wrong finding of this character gave rise to a ground of review, it is not made out in the present case. 14 The next matter raised by the applicant concerned a comment by the Tribunal to the effect that some of the evidence given by the applicant relating to threats that had been made to him was vague. It was submitted that the Tribunal was obliged by s 424(2) and/or s 420(2)(b) of the Migration Act 1958 (Cth) ("the Act") to invite the applicant to clarify that which appeared vague. Section 424 does not, in terms, impose any such obligation and is in permissive terms. Moreover s 420(2)(b) does not, when read with s 476(1)(a), provide a mechanism for impugning a decision of the Tribunal. 15 The next submission made by the applicant was that the Tribunal had wrongly concluded that the applicant had left the Shibir sometime around or before 1991 when he finished his studies. It is true that the Tribunal earlier in its decision recorded evidence given by the applicant that he was still associated with the Shibir. However there was evidence before the Tribunal that supported the finding it made. Thus, even assuming that a wrong finding of this character might establish a ground of judicial review, it is not made out in the present case. 16 The next submission of the applicant concerned a remark of the Tribunal that the applicant had made "no claim whatsoever nor any reference to any problem relating to this 1986 incident". This was a reference to what was said by the applicant in his initial application for a protection visa about the murder of the applicant's brother. The applicant submitted that evidence had been given to the Tribunal by a person who had assisted the applicant to fill in the application explaining how the application had been completed. However when this evidence was given the Tribunal made it perfectly plain that it did not accept the explanation being given by that person. Having rejected that evidence it was open to the Tribunal to rely on the failure to refer to the 1986 incident in the original application as part of the process of assessing the significance of the incident to the applicant's present claim for a protection visa. The fact that the Tribunal accepted that the brother had, in fact, been killed did not mean that it was not open to the Tribunal to reject the applicant's claims about the present significance of that event. 17 A related submission concerned the Tribunal's account of the evidence that the applicant had given. The Tribunal records that the applicant had submitted that "he thought that he could give detail later on and that he thought that it did not matter". I accept that this does not represent words used by the applicant. However I accept the submission of counsel for the Minister that this was the gist of the evidence given by the applicant. That is, the applicant believed that it was unnecessary to record these matters in the original application as details could be provided at a later stage. 18 The next submission made by the applicant concerned the finding by the Tribunal that "there (was) no evidence to suggest that (the applicant) has pursued the matter at all". The matter in question is the death of the applicant's brother and the attempts by the applicant to have those responsible for the brother's death dealt with by the authorities. Counsel for the Minister accepted that this observation of the Tribunal overstated the position and that there was some evidence that the applicant had pursued the matter. The applicant referred, in this regard, to a statement that had been in evidence before the Tribunal from the superintendent of the hostel in which the applicant's brother had been killed. However counsel for the Minister submitted that such an error was not judicially reviewable and referred to the judgment of RD Nicholson J in Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 174 at para 3. I accept this submission. The applicant relied on this erroneous finding as establishing that there was no evidence or other material to justify the making of the decision: s 476(1)(g), in that the Tribunal based its decision on the existence of a particular fact and that fact did not exist: s 476(4)(b). The erroneous finding of the Tribunal that there was no evidence that the applicant had pursued the brother's death was not a finding upon which the decision was based. It was simply one matter which together with a number of other matters pointed to the same conclusion. That is, the brother's death in 1986 did not in any material respect bear upon the risk of the applicant being persecuted were he now to return to Bangladesh.
19 The last submission by the applicant concerned a comment by the Tribunal to the effect that even if the applicant was at risk of harm were he to pursue those who had killed his brother then any risk of harm was not for a Convention reason. I accept, as counsel for the Minister submitted, that the Tribunal correctly identified the relevant motives as those of the potential perpetrators of harm. I also accept that it was open to the Tribunal to make the finding that the risk of harm would not be for a Convention related reason. 20 The applicant has not made out a ground for judicial review. Accordingly I dismiss the application with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore .
Associate: Dated: 10 February 2000 Representative of the Applicant: Dr Raashed
Solicitor for the Respondent: Australian Government Solicitor
Islam
Minister for Immigration & Multicultural Affairs