NAPU v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2004-08-05|Before: Emmett JJ, Moore J

Introduction 1 This is an appeal from a judgment of a judge of this Court of 19 December 2003 dismissing an application under s 39B of the Judiciary Act 1903 (Cth) for constitutional writs in relation to a decision of the Refugee Review Tribunal ("the Tribunal"). On 17 October 2000 the appellant arrived in Australia and on 27 November 2000 lodged an application for a protection visa under the Migration Act 1958 (Cth) ("the Act"). That application was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") on 16 January 2001. The appellant sought a review of that decision by the Tribunal. On 31 March 2003 the Tribunal made the impugned decision affirming the decision of the Minister not to grant the protection visa.

Background 2 The following is a summary of the appellant's claims before the Tribunal. It will be necessary to return, in due course, to the terms in which some of these claims were expressed by or on behalf of the appellant. The appellant is a citizen of Bangladesh by birth. He completed a Master of Arts degree at the University of Dhaka in 1993. He had been actively involved in politics in Bangladesh and supported the Jatiya Party and former President Ershad. While at university and while President Ershad was in power, he was active in politics and tried to protect the government's interests. 3 The appellant is a journalist by profession. He worked for the Daily Saikat as a sports reporter, the Monthly Mohammedan (Sports Magazine) as an executive editor and finally, before arriving in Australia, he worked as a sports editor for the Daily Ajker Kagoj, a national daily newspaper. He was an outspoken journalist. He criticised the government as well as officials who had government support. 4 The appellant left the Jatiya Party in 1994. He had experienced no problems because of his involvement with the Jatiya Party or his other political activities. He wrote mostly about sporting players and events, but also about other issues related to sport. This included an article critical of the Awami League published in the same newspaper as his sports articles. He did not experience any problems as a result of writing that article. 5 The appellant's difficulties started in 1994 after he wrote an article accusing the Swimming Federation of harassing women swimmers and of not using their funds appropriately. Someone, who he believed was attached to the Federation, approached him in the street and warned him not to write any more articles criticising them. In 1995 he wrote about the treatment of women and handling of funds by the Handball Association. After that, no one from the Handball Association would talk to him. In 1998 he wrote about the Shooting Association selling bullets on the blackmarket. Someone later hit him with a stick. He was not hospitalised and nothing further happened to him. 6 On 6 October 2000 the appellant published a report concerning the misappropriation of funds by officials of the Bangladesh Football Federation ("the BFF") in which he said there had been no proper account for millions of dollars donated to the BFF by the Federation of International Football Association. The following week, on 13 October 2000, the appellant published a report accusing the General Secretary of the Mohammedan Sporting Club ("the MSC") of stealing money from the club. He named the individuals from the BFF and the MSC because the problems were ongoing and he believed he would be leaving the country soon. His sources of information for the articles were members of an opposition group within the BFF. He had no concrete evidence of any wrongdoing and the allegations were not reported to the authorities for that reason. 7 The appellant was threatened several times before leaving Bangladesh by members of a gang linked to those accused of misappropriating funds. Between the publication of the 6 October 2000 article and the 13 October 2000 article, he was told he would not be allowed to enter the BFF and if he were to return, he would be tortured. On 15 October 2000, the appellant received a telephone threat from someone associated with the MSC as a result of the 13 October 2000 article. This threat was reported to the police. 8 On 17 October 2000 the appellant left Bangladesh for Australia and later learnt that people sent from the MSC ransacked his family home the day of his departure. His brother attempted to file a complaint with the police, but was refused. False charges were laid against the appellant.

The Tribunal's decision 9 The Tribunal accepted that the appellant had published several articles critical of leading figures in the sporting world in Bangladesh. However the Tribunal concluded the appellant had exaggerated the extent of the problems associated with the publication of the articles. The Tribunal rejected that any cases, false or otherwise, were filed against the appellant and concluded that the documents provided by the appellant in support of this claim were false. The Tribunal noted that the appellant did not mention the charges when asked about his fear of returning to Bangladesh: I do not believe that he would forgotten (sic) that a warrant had been issued for his arrest in Bangladesh if this were the case. Furthermore, the letter supposedly written by his lawyer warns him that he is at risk of harm from his political opponents, but says nothing about the articles [the appellant] wrote or the sporting groups he offended. [The appellant] has never claimed that he is at risk of harm from people who disagree with him over political issues. 10 The Tribunal accepted that the appellant: may have been threatened and been warned to cease writing articles containing the kind of accusations he made in the articles he wrote in October 2000. However, his evidence on the problems and his family he (sic) faced after these articles were published was confused and contradictory and I believe that he has exaggerated the number and seriousness of the threats made against him. Furthermore, I do not believe that he is currently at risk of serious harm because of this articles (sic). If the BFF or [the MSC] had intended to kill or seriously harm him for writing these articles they had time to do so before he left the country. They did not. They warned him to stop writing the articles, and he has not written any since that time. I do not believe that either group would have any interest in him if he returned to Bangladesh now. 11 However the Tribunal concluded the appellant was not threatened for any Convention reason: In any event, as I explained to [the appellant] at the hearing, even if I accepted that he was at risk of harm because of the newspaper articles if he returned to Bangladesh, this would not bring him within the scope of the Convention as he would not be at risk of harm for any of the reasons contained in the Convention. It is clear from the evidence which [the appellant] gave at the hearing that he was threatened because the people he had written about wanted to silence him or to seek revenge for the statements he had made, not because of his race, religion, nationality, membership of a particular social group or political opinion. In this regard, I note that the article which [the appellant] wrote criticising the Awami League caused him no problems and that the people he criticised in the newspaper articles came from both the Awami League and the BNP. (Emphasis added) 12 One further matter should be noted about the Tribunal's decision and the procedure it adopted. In its decision the Tribunal recorded that a former colleague of the appellant, Mr Rahman, had attended the hearing to give evidence. Ultimately he did not give evidence and the reason why is apparent from the following passage of the Tribunal's decision: Mr Rahman, a former colleague of [the appellant] also attended the hearing. It was established that he had arrived in Australia in February 2000 and had not first hand knowledge of his problems, but could give evidence on the problems which members of the Bangladeshi media sometimes face. I told [the appellant] that I accept that members of the Bangladeshi media were sometimes victims of violence or harassment from the government and/or powerful individuals. It was agreed that there was no need for Mr Rahman to give evidence. It can be seen that the Tribunal accepted the difficult position of journalists in Bangladesh generally but apparently did not view it as necessary to hear his evidence on that issue.

The decision below 13 The grounds for the application before the primary judge were summarised in her Honour's judgment (at [15]): [The appellant] applies to this Court for a review of the decision of the Tribunal on the following grounds: (1) [the Tribunal] constructively failed to exercise its jurisdiction under the Act in that it failed to determine the social group that [the appellant] belonged to, and in particular, whether he belonged to a social group of Bangladeshi journalists who had written articles critical of political groups or their supporters. (2) [the Tribunal] failed to give [the appellant] a hearing for the purposes of s425 of the Act as it did not consider his claim that he feared persecution as a member of a social group of Bangladeshi journalists who had written articles critical of political groups or their supporters. (3) [the Tribunal] breached the rules of natural justice as it did not consider his claim that he feared persecution as a member of a social group of Bangladeshi journalists who had written articles critical of political groups or their supporters. (4) [the Tribunal] constructively failed to exercise its jurisdiction as it failed to consider whether it was likely that [the appellant] would continue to write articles critical of the political groups or their supporters upon returning to Bangladesh. (5) [the Tribunal] constructively failed to exercise its jurisdiction as it failed to consider whether the restriction on the activity of the social group itself was persecutory in the sense that it would require [the appellant], as a member of the social group, to retreat from any of the identifying features of the social group to which he belonged. 14 Her Honour concluded that there could be no challenge to the finding that the appellant had no subjective fear of persecution as the finding was open to the Tribunal and based on adverse findings of credit that could not be challenged as jurisdictional error. As a consequence, the appellant had not satisfied the second element of the Convention definition of refugee discussed by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570 (that the appellant feared persecution). Her Honour held (later in her reasons) that the Tribunal was not required to examine the third (whether the fear was for reasons specified in the Convention) and fourth (whether there existed a well-founded fear for one of the Convention reasons) elements of the test for a refugee as discussed in Guo (supra). It is not obvious that the Tribunal made a finding of the type discussed by her Honour and referred to at the beginning of this paragraph. However, this appeal does not turn on whether such a finding was made. 15 Her Honour concluded that the appellant raised, and the Tribunal dealt with, the issue of the appellant's membership of a particular social group. The Minister did not put in issue in this appeal the conclusion of the primary judge that the appellant raised his membership of a particular social group. Her Honour noted the Tribunal had recorded the appellant's claim that 'he was one of a very few outspoken journalists in Bangladesh and his life was at risk'. Her Honour also noted that the Tribunal had found as a fact that was open to it, there had been no persecution of the appellant as a member of that social group (at [27]-[28]): Relevantly, the Tribunal concluded that, even if there were threats, it was because the people he had written about wanted to silence him or seek revenge and not because of his race, religion, nationality, membership of a particular social group or political opinion. In that regard, the Tribunal noted that an article critical of the Awami League caused him no problems and that he had criticised people from both the Awami league and the BNP. Taken in context, the Tribunal did not fail to determine the claimed social group. It did consider his claim that he feared persecution as a member of the claimed social group. The Tribunal found, as a fact that was open to it, that there had been no persecution of [the appellant] as a member of that social group. 16 Her Honour also concluded that the Tribunal was not obliged to consider what activities the appellant may choose to pursue if returned to Bangladesh (at [33]-[34]): The Tribunal found, on the basis of [the appellant]'sevidence, that he did not write any more articles about the Swimming Federation, he did not return to [the BFF] and that he had not written any articles since those of 6 and 13 October 2000. [The appellant] does not seem to have given any evidence that he intended to write articles critical of the political groups or their supporters upon returning to Bangladesh. The basis of his case was alleged harm arising from past writings about sporting organisations. His own evidence was that he did not experience any problems when writing articles critical of political groups, such as the Awami League. Given the finding that [the appellant] did not face any harm prior to his departure or now, there was no basis in [the appellant]'s case for a finding that he faced a real chance of persecution on his return. In view of the Tribunal's factual findings, the Tribunal was not obliged to consider the range of possible activities in which [the appellant] might choose to engage. [The appellant] did not claim before the Tribunal or [the Minister] that his freedom of expression would be restricted upon return to Bangladesh. He claimed that he would not be able to get a job as a journalist. [The appellant] did give evidence in respect of this inability but gave no evidence of an intention to continue to write critically of political groups or their supporters or whether the present circumstances would give rise to a need or desire to write critically of sporting organisations. [The appellant] did give evidence that he ceased writing which he was warned to do so. There is no further evidence as to why [the appellant] ceased writing. Therefore, there was no evidence before [the Minister] or the Tribunal to support this claim.

Issue raised at the hearing of the appeal 17 The appellant was not represented at the hearing of the appeal (nor before the primary judge). He submitted that he had published articles exposing corruption in sporting organisations and that the Tribunal had not dealt with the issues of whether he was a member of a particular social group and whether he had a well-founded fear of persecution for a Convention reason relating to that membership. 18 Counsel for the Minister submitted that the Tribunal had not accepted that any group would have an interest in the appellant if he were to return to Bangladesh. It had found that if persons wanted to harm him as a result of publishing the particular articles, they would have done so before he left the country. Counsel also submitted that before the Tribunal, the appellant's claims were brought on an historical basis of what the appellant had done in the past and not what the appellant was going to do on his return to Bangladesh. Further, counsel submitted that the articles were not about a particular political party but rather specific instances of corruption in two sporting bodies and that the fear felt by the appellant would not be based on his membership of a particular social group. 19 At the conclusion of the hearing we invited written submissions concerning the Tribunal's consideration of the question of whether the appellant was a member of a particular social group and whether he had a well-founded fear of persecution because of that membership. It became relatively clear during the hearing that this was the issue the appellant sought to raise in the appeal.

Minister's post hearing submissions 20 The following is a summary of the Minister's submissions after the hearing. First, it is necessary to be cautious in characterising a particular occupational group as a particular social group for the purposes of the Convention: see Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458. With that qualification, two different particular social groups the appellant might have sought to be identified (a question of fact for the Tribunal) were: (a) outspoken journalists in Bangladesh (as per the question posed by the Court); or (b) Bangladeshi journalists who had written articles critical of prominent groups in society or their supporters. 21 The appellant would have difficulty demonstrating that his fear of persecution was for a Convention reason under either social group as the fear was based on: individual reactions by those against whom the appellant had been outspoken, or written critical articles about. The appellant's case relied upon the two articles he had written, the reaction that he claimed that had provoked against him for who he was rather than what he had done, and the fears he said that reaction had engendered. 22 The appellant did not pursue his claim on the basis of what he may or may not do were he to return to Bangladesh in the future.

Appellant's post hearing submissions 23 The appellant's written submissions filed after the hearing were prepared by counsel. It was submitted by reference to the two groups identified in the written submissions of the Minister, the appellant had formulated his claim based on the first (outspoken journalists in Bangladesh) in his original visa application and his application for review to the Tribunal. It was also supported by the appellant's adviser's written submissions to the Tribunal and the independent material he lodged in support of that submission. The appellant's post hearing submissions noted that the Tribunal accepted that members of the Bangladeshi media were sometimes victims of violence or harassment from the government and/or powerful individuals. 24 Reference was made to Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 in which Gummow and Callinan JJ observed that when considering a claim based on a well-founded fear of persecution because of membership of a particular social group, the Tribunal must first determine whether the class to which the applicant claims to belong, is capable of constituting a social group for the purposes of the Convention. If so, the next question is whether the applicant is a member of that class and whether the applicant has a fear, whether it is well-founded, and, if so, whether it is for a Convention reason. 25 It was submitted that it had been incumbent on the Tribunal to determine whether there was a social group of outspoken journalists and no such determination was made. It was also submitted that the factual conclusion by the Tribunal that the recent threats to the appellant were by the persons about whom he had written seeking to silence him or seeking revenge, did not relieve it from considering the position of outspoken journalists given the evidence of targeting continuing after the appellant's departure from Bangladesh.

Reasoning in the appeal 26 The central issue in this appeal is whether the Tribunal addressed the case raised by the material advanced by or on behalf of the appellant. It is necessary to refer in a little more detail, to the basis upon which the appellant advanced his application for a protection visa. 27 The application was lodged by migration agents acting on behalf of the appellant in a letter dated 2 November 2000. In the letter reference was made to an attached statutory declaration 'which explain[ed] his predicament and his fears for not returning to Bangladesh'. The statutory declaration (dated 17 November 2000) recounted much of what has already been described in a summary way. However, in particular, the following things were said by the appellant: · "[coming to Australia] is a very good opportunity to find an alternative to come to a country where human dignity prevails, people applies their democratic rights, professional has right to speak, specially the journalists can express their own views in protest against anything beyond civic interests." · "The fact is that I am one of the very few outspoken journalists in Bangladesh who work at the risks of their lives. I never hesitate to publish the truth and speak out against corruptions. I never negotiate with those who try to harm the interest of the general people of the country. It is fact the influential persons in the society are related to corruptions in any way or other and they protect themselves with the help of their own gang. As a sports journalist I was able to identify corruptions among the sports officials at different level and publicised in the newspaper. As a result an antagonistic relationship established between these powerful elements of the society and a poor journalists like me." · "I wish to apply for domestic protection on the belief that I have every chance of being persecuted on my return back to Bangladesh because of my professional responsibilities and political belief. I wish to indicate that I have left my country to residence, Bangladesh, when the situation was completely against me. My honesty forced me to face such a risky situation. I have legitimate fears if I am forced to remain in that country. There is well-founded fear of persecution on my return back to Bangladesh." · "Since the first day of my job I never slipped a single step from the ethics of the profession i.e. honesty, sincerity, devotion, to speak out against anti-social activities. The political leaders, government official and the people related with the management of different organizations do not like the people me who speaks out against corruptions. I have experienced the same scenario from beginning of my career" · "Journalists who tell the truth always encounter danger, life is threatened" · "It is remarkable that during the period of this government the journalists are living a totally helpless and devastated life specially those who do not support their activities and criticise the government." · "I firmly believe that I have every chance of being persecuted on my return back to Bangladesh. My life will be under threat. I shall be discriminated in every walk of life. It will hard for me to lead a normal life and also with human dignity. I have also well-founded fear of being persecuted for my political belief. There is a very meagre chance of being protected by the government. The opportunity to live me in Australia will give me a secured and peaceful life." · "However, if I am forced to return to Bangladesh, I shall be placed in a position whereby on return it will be a totally hostile and unforgiving environment, which will serve to discriminate against me." 28 Similar statements were made by the appellant in the completed application form concerning why he left Bangladesh and what he feared might happen to him if he returned. However in response to a question in that form about who would harm him he indicated: 'The influential political and social leader against whom I wrote in the newspaper and flushed to the public regarding the misappropriation of funds, they will harm me on my return back to Bangladesh'. 29 The delegate, in the decision record, summarised what had been claimed in the statutory declaration and application as including: 2. He believes he is an outspoken sports journalist who is unafraid to speak his mind and write the truth. He believes his life is in jeopardy in Bangladesh because of this. 30 In the form applying for review by the Tribunal, the appellant said (in a section inviting explanation as to why the delegate's decision was wrong) that: 'I firmly believe that I have well founded fear of being persecuted on my return back to Bangladesh due to my professional responsibilities I performed during the period of my employment as journalist.' In a written submission by a migration agent (dated 16 November 2001) sent to the Tribunal on behalf of the appellant it was submitted that the appellant would 'experience persecution and lack of protection on his return back to Bangladesh due to his political affiliation and brave commitment to his profession' though the submission concluded by saying that the feared persecution arose from the Convention based ground of the appellant's political activities as a member of the Jatiya party in Bangladesh. 31 In its reasons, the Tribunal recorded the following: I asked [the appellant] what he feared would happen to him if he returned to Bangladesh. He said that he feared he would be attacked and killed by agents from the Football Club or the Mohammedan Sporting Club if he returned home. He also said that he would not be able to find work as a journalist because he had lost his job when he did not return after reporting on the Paralympics and he was banned from working by the Dhaka Journalist Union as a result of dispute between his paper and the union (sic) the paper's decision to work on a public holiday. 32 During the review by the Tribunal, the appellant's adviser forwarded certain documents to the Tribunal. They included newspaper and Internet articles about violence to particular Bangladeshi journalists or journalists in Bangladesh generally. One, an article from the Dhaka Courier of 4 May 2001, included: The fourth state of the country has come under violent attack, this time not by the state machinery but by organised gangs. The incidents of assault on press nowadays have risen alarmingly, making journalists the most vulnerable professionals than any other group. In most of the cases the attackers remain at large or under the shelter of powerful groups or in some cases under the umbrella of influential members of the ruling party. The violence has affected all sections of the media, be it print or broadcast, local or international, public or private, Bangla or English. Journalists have developed a sense of insecurity due to a sharp rise in the frequency of attacks on the journalists by political activists and police. In the first four months of the current year one reporter was killed and 35 others were injured, two of them still fighting for life in hospital beds. Killing, attacks, kidnappings, blackmail and death threats to journalist have become an order of the day. Two journalists were killed, more than 45 came under attack, nine arrested and about 20 others were threatened during the year 2000. 33 To similar effect was an undated article from the Internet which included what was described as a "Message from Noted Columnist Abdul Gaffar Choudhury" which commenced by saying: The journalists in Bangladesh are being repressed in many ways. To call it repression will be an understatement. They are being killed mercilessly. The entire Bangladesh is in grip of terrorism. Journalism is also a victim of it. Black money, party hooligans, professional killers, politics of vengeance and violent fundamentalism today are the biggest enemy of honest journalism. Shamsur Rahman, the journalist from Jessore, had to give his life at the hand of this enemy. Similarly, journalist Tipu Sultan returned from the door step of death. But he is severely injured. If he does not get immediate treatment, he may well be paralysed for life. His life may be threatened. 34 Having regard to this material, it is necessary to identify what was the case raised by the appellant having regard to what he said (both orally and in writing (including in submissions made on his behalf)) and the material he presented to the Tribunal. It is necessary to ensure that this Court does not assess whether the Tribunal fell into jurisdictional error by reference to a case that was never raised: see generally Minister for Immigration and Multicultural Affairs v S152/2003 [2004] HCA 18. Nonetheless, it is well settled that the Tribunal should not limit itself to the case articulated by an applicant where the facts found by it (or not negated by its findings) might support an argument that the applicant is entitled to the protection of the Convention: see Minister for Immigration and Multicultural Affairs v Applicant S (2002) 124 FCR 256 at [1] and [73] per Whitlam and Stone JJ and at [50] per North J (a proposition not put in issue by the High Court when reversing the judgment of the Full Court: [2004] HCA 25) and Minister for Immigration and Multicultural and Indigenous Affairs v VFAY [2003] FCAFC 191 at [97]. 35 The difficult question in this matter is whether on the facts found by the Tribunal (or not negated by its findings), it should have considered whether the appellant was a member of a particular social group and, if so, whether he feared persecution because of his membership of that group and whether that fear was well-founded. A consequential issue is whether if these issues were raised, were they addressed by the Tribunal. 36 The Tribunal found that the appellant had published several articles critical of leading figures in the sporting world in Bangladesh. It did not reject the material furnished by the appellant (mainly, but not exclusively, newspaper articles) which might have supported a conclusion that outspoken journalists in Bangladesh were at risk of harm. It made no findings one way or the other about this material. The Tribunal did not address the question of whether there was a particular social group constituted by outspoken journalists in Bangladesh or a group, differently described, with similar characteristics. That would have been the first step in considering whether the appellant had a well-founded fear of persecution by virtue of his membership of any such group. 37 The Tribunal's failure to consider whether there was a particular social group constituted by outspoken, or perhaps truthful, journalists in Bangladesh, has particular significance because of the Tribunal's acceptance that members of the Bangladeshi media were sometimes victims of violence or harassment from the government or powerful individuals or both and its determination that there was no need for Mr Rahman to give evidence. The evidence that Mr Rahman was apparently prepared to give, could have been relevant to the question whether the Bangladeshi media, or a section of it, was an identifiable group by reason of a common characteristic or attribute and thus a particular social group: see Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25. 38 The Tribunal expressed a conclusion that the appellant had been threatened because the people he had written about wanted to silence him or seek revenge for the statements he had made and not because, inter alia, of his membership of a particular social group. On a narrow view of the case raised by the material provided by the appellant, this provided a sufficient answer to the claims made by the appellant. That is because the appellant, in identifying at various points during the consideration of his application (including its consideration by the Tribunal) the harm he would suffer were he to return to Bangladesh, focused on the harm he would suffer at the hands of those he had written critical articles about immediately before leaving Bangladesh. However the various descriptions by the appellant of himself as an outspoken journalist and the material he furnished about the fate of journalists in Bangladesh, fairly raised a broader case than the case dealt with by the Tribunal. There was no consideration of whether such a group existed, for Convention purposes, whether the appellant was a member of it, and, if so, whether he had a well-founded fear of persecution because of that membership. It was not sufficient for the Tribunal to deal with the question of membership of a particular social group in the summary way just outlined. 39 It may be accepted, as counsel for the Minister submitted, that one should be cautious in characterising an occupational group as a particular social group: Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458 at 464, though having regard to the recent judgment of the High Court in Applicant S v Minister for Immigration and Multicultural Affairs it is clear the Full Court took too narrow a view of what may constitute a particular social group. However, even if the view the Full Court expressed was too narrow, their Honours nonetheless recognised (at 464-465): There will no doubt be cases in which persons who have in common no more than a shared occupation do form a cognisable group in their society. This may well come about, as McHugh J recognised in Applicant A's case, when persons who follow a particular occupation are persecuted by reason of the occupation that they follow. The persecution for following a particular occupation may well create a public perception that those who follow the occupation are a particular social group. Human rights workers in certain nations subject to totalitarian rule come to mind as a possible example. 40 In Nouredine v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 138 Burchett J accepted that beauty workers in Algeria were a particular social group as they were seen by religious extremists as purveyors of immorality and therefore as a group within society that should be eliminated. After referring to Zamora (supra) and Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, his Honour said (at [13]): But in neither case was it denied that an occupational group may, in particular circumstances, also be a social group. In my judgment in Ram at 568 I referred to the situation in Cambodia under Pol Pot, where "teachers, lawyers, doctors and others … were regarded as potentially dangerous to the new order", as a textbook example of persecution for membership of a social group. 41 The passage in Ram referred to by his Honour bears repeating (at 568): The point can be illustrated from history. In the infamous Reign of Terror during the French Revolution, men, women and children were guillotined because they belonged to a class seen as dangerous to the emerging democratic State. Similarly, in Cambodia under Pol Pot, teachers, lawyers, doctors and others who were seen as having, by their education and status, a capacity to influence public opinion, were regarded as potentially dangerous to the new order, and were therefore eliminated. These were textbook examples of persecution for membership of a social group. In neither case was the motivation what a particular individual possessed or had done. Of course, many of the people murdered did have greater wealth than the average, but others did not. Some probably had greater capacity, if they chose, to act against the State than the average citizen, but many were quite helpless. The fact is that it was the whole class which, in each instance, was attacked. Individuals were not persecuted for what they had done as individuals, nor for what they possessed as individuals. 42 More generally, issues have arisen at least in Canada and the United States about whether journalists may be a particular social group for the purposes of the Convention. Persecution on the basis of membership of a particular social group, namely journalists in a particular country, has been raised together with persecution on the basis of imputed or actual political opinion. These grounds are either framed separately or as persecution on the basis of membership of a particular social group, journalists who speak out against government or particular government policy. As the United States Court of Appeal said in Hussain v Immigration and Naturalization Service 246 F 3d 647, 2000 WL 1523100, 2 (9th Cir. 2000): Persecution because of an "act that constitutes an overt manifestation of a political opinion" is "persecution because of a political opinion". Journalism is work that overtly manifests a political opinion". (citations omitted) 43 In Canada and the United States courts have not rejected claims advanced on the footing that the asylum seeker was a member of a particular social group constituted in some way by journalists, on the basis that journalists will never form such a group. Ultimately, whether journalists sharing some common characteristic form a "particular social group" will depend on the operation of cultural, social, religious and legal factors within a country: see Applicant S v Minister for Immigration and Multicultural Affairs (supra). 44 In the recent United States Court of Appeal case of Agada v Ashcroft 2004 WL 1076426 the petitioner sought relief under the Convention Against Torture and argued the relevant decision makers had failed to analyse his case 'as one involving a "pattern or practice" of persecution of a group…, namely journalists'. He claimed that his case arose as a result of adherence to the Nigerian Union of Journalists principle of objective reporting of news without fear or favour. The petitioner had also expressed political opinion as a journalist. The Immigration Judge noted that journalists were detained and imprisoned and that the government ignored its constitutional guarantees of freedom of speech and freedom of the press under Nigeria's then president. However, the Court agreed that country conditions in relation to freedom of the press had changed drastically since the petitioner's departure and denied his petition. 45 It will ultimately be for the Tribunal to determine whether there is a particular social group constituted by outspoken journalists in Bangladesh or a group with similar defining characteristics. However, if the Tribunal does conclude that there is a particular social group of the type just discussed, it will be necessary to consider whether the appellant is a member of that group and also whether, by virtue of that membership, he has a well-founded fear of persecution. These issues were raised by the material presented to the Tribunal and not addressed by it. Issues concerning persecution by the state or by non-state actors uncontrolled by the state may also arise (see, for example, the observations of Kirby J in Minister for Immigration and Multicultural Affairs v S152/2003 at [100]). The Tribunal did not deal with the case raised by the appellant's material and thereby fell into jurisdictional error: see Dranichnikov v Minister for Immigration and Multicultural Affairs (supra). 46 The appeal should be allowed, the orders of the primary judge should be set aside, a writ of certiorari should issue removing to this Court and quashing the decision of the Tribunal and a writ of mandamus should issue requiring the Tribunal to hear and determine the appellant's application for review. The Minister should be ordered to pay the appellant's costs of the written submissions prepared after the hearing. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

branson J 47 I have had the advantage of reading in draft the reasons for judgment of Moore J. 48 I agree with his Honour, for the reasons which his Honour gives, that the claims made by the appellant required the Tribunal to give consideration to whether it was satisfied that the appellant had a well‑founded fear of persecution in Bangladesh by reason of his membership of a particular social group within the meaning of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ('the Convention'). 49 In determining whether it was so satisfied, the Tribunal would first have had to determine whether it was satisfied that a group constituted by outspoken journalists in Bangladesh, or some other relevant sub‑set of members of the Bangladeshi media, fell within the meaning of 'a particular social group' in Article 1A(2) of the Convention. It would seem that Mr Rahman, as a former journalist in Bangladesh, would have been able to give evidence relevant to this issue. The acceptance by the Tribunal that it was unnecessary for it to receive his evidence is a strong indicator that it did not consider it necessary to examine whether the appellant might have had a well‑founded fear of persecution by reason of his membership of a social group constituted by journalists, or a sub‑set of journalists, in Bangladesh. 50 If satisfied that a group constituted by outspoken journalists in Bangladesh, or some other relevant subset of members of the Bangladesh media, fell within the meaning of a 'particular social group', the Tribunal would next have need to determine whether it was satisfied that the appellant was a member of that group. If so satisfied the Tribunal would then have had to determine whether it was satisfied that the appellant had a well‑founded fear of persecution by reason of his membership of that group. The Tribunal did not undertake any of the above steps. 51 Like Moore J, I conclude that the decision of the Tribunal was not a 'privative clause decision' within the meaning of s 474 of the Migration Act 1958 (Cth) as it was a decision that the Tribunal lacked jurisdiction to make; the Tribunal did not deal with a case raised by the appellant (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389). 52 As Moore J mentions at [14], the learned primary judge referred in her reasons for judgment to a finding by the Tribunal that the appellant had no subjective fear of persecution. In my view it is plain that her Honour did not intend to suggest that the Tribunal found that the appellant had no subjective fear of persecution on any ground. Had the Tribunal made such a finding the application before her Honour would have been bound to fail. The relevant sentence of her Honour's judgment follows a recitation by her Honour of a submission of the respondent that the applicant did not, before the Tribunal, articulate a claim that he feared persecution as a member of a social group. The reasons for decision of the Tribunal record that the appellant did not claim that he was at risk of harm from people who disagree with him over political issues. However, the Tribunal accepted that the appellant might have been threatened and warned to cease writing articles making the kinds of accusations that he made in an article that he wrote in October 2000. While the Tribunal did not accept that the appellant is currently at risk of serious harm because of his past articles, it did not give consideration to whether, in Bangladesh, he would face risks in respect of which he would not enjoy state protection, not by reason of any specific article that he had written or might write, but because of who he might be seen to be.

53 I agree with the orders proposed by Moore J. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REASONS FOR JUDGMENT EMMETT J: 54 The appellant is a citizen of Bangladesh. He arrived in Australia on 17 October 2000 and on 27 November 2000 he lodged and application for a Protection (Class XA) Visa under the Migration Act 1958 (Cth) ('the Act'). On 17 January 2001 a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ('the Minister'), refused to grant a protection visa and on 13 February 2001 the appellant applied to the Refugee Review Tribunal ('the Tribunal') for a review of the delegate's decision. 55 On 31 March 2003, the Tribunal affirmed the decision not to grant a protection visa. The appellant was notified of that decision on 22 April 2003 and on 15 May 2003 the appellant filed an application to the Court seeking constitutional writ relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the decision of the Tribunal. After a hearing on 29 September 2003, in which the appellant appeared in person, a judge of the Court ordered on 19 December 2003 that the application be dismissed with costs. By notice of appeal filed on 7 January 2004, the appellant now appeals to the Full Court. 56 The appellant claimed to be entitled to a protection visa by reason of his activities in Bangladesh as a journalist, first as sports writer for the Daily Saikat, then as executive editor for the Monthly Mohammedan (Sports Magazine) and finally, from January 1997 until August 2000, as sports editor for the Daily Azker Kagoj. The appellant claimed to have a well-founded fear of being persecuted by reason of his political opinion. The Tribunal rejected any claim based on a fear of persecution by reason of political opinion. 57 However, the question raised in the appellant's amended application to the Court is whether the Tribunal dealt adequately with the question of whether the appellant had a well-founded fear by reason of his membership of a particular social group consisting of journalists who had written articles critical of political groups or their supporters. The primary judge concluded that the Tribunal considered the appellant's claim to be a member of such a group and found that there had been no persecution of him as a member of that group. 58 The notice of appeal filed by the appellant raises a number of grounds that have no substance. However, the notice of appeal also raises the ground that the primary judge erred in not finding that the Tribunal failed to deal in any substantive way with the appellant's claim that he has a well-founded fear of persecution by reason of his membership of a particular social group consisting of journalists. That ground must be taken to refer to a particular social group consisting of journalists who have written articles critical of political groups or their supporters, although that is not stated specifically in the notice of appeal or in the written submissions filed by the appellant.

THE APPELLANT'S CLAIMS 59 In a statutory declaration lodged in support of the original application to the Minister, the appellant relevantly said as follows: 'A few powerful persons, who were acting against me in collaboration with the government created a plot to harass, intimidate and threaten me. The fact is that I am one of the very few outspoken journalists in Bangladesh who work at the risks of their lives. I never hesitate to publish the truth and speak out against corruptions. I never negotiate with those who try to harm the interests of the general people of the country. It is fact the [sic] influential persons in the society are related to corruptions in any way or other and they protect themselves with the help of their own gang. As a sports journalist I was able to identify corruptions among the sports officials at different level and publicised in the newspaper. As a result an antagonistic relationship established between these powerful elements of the society and a poor journalists like me. … I wish to apply for domestic protection on the belief that I have every chance of being persecuted on my return back to Bangladesh because of my professional responsibilities and political belief. I wish to indicate that I have left my country to residence, Bangladesh, when the situation was completely against me. My honesty forced me to face such a risky situation. I have legitimate fears if I am forced to remain in that country… Uncertainty exists in that country due to great turbulence and antagonism that is extremely bitter in respect of the enmity between the political parties… In Bangladesh I am placed in what can be regarded as a unique position and compelling nature. I believe that my specific circumstances are worthy of sympathetic appraisal.' 60 Later on in the same statutory declaration, the appellant said: 'This is for your information that I am a sports reporter and my responsibility is to publish the reports on different sports federations in regard to there [sic] activities, finance, performance and planning. In findings I have to conclude with the achievements, success and failure, management of their budget etc. I have published the name of the persons involved with corruption specially misappropriation of funds. These persons have targeted me as their principal enemy and have been trying to find opportunity to take revenge. I was assaulted in many ways. Journalists who tell the truth always encounter danger, life is threatened. On 6 October, 2000 I have published a report on Bangladesh Football Federation. The report mainly contains about the misappropriation of funds by the official… On the following week I published another report on one of the biggest club 'Mohammadan', targeting its General Secretary who is trying to occupy the assets of he[sic] club and plundering money of the club. He is a very influential person both politically and socially. These people threatened me and on 15 October 2000 I filed a GD in local police station. After they became very furious and came to my home to look for me on 17 October 2000. In my absence they assaulted my family members and damaged household items. All my family members were helpless in front of them. I believe that under these circumstances my life is totally insecure in Bangladesh. It is remarkable that during the period of this government the journalists are living a totally helpless and devastated life specially those who do not support their activities and criticise the government. The journalists are arrested with out any warrant and put in detention. … Being a journalist I supported the anti government movement both morally and physically. My firm belief in Jatiya Party politics gave me an understanding that Awami League has proved unsuccessful to run the country. It is reflected in all their activities. Ersahd is the most competent person to rule the country in the right direction. I wrote articles in the newspaper criticising the activities of the government and supporting the opposition programme. This is a great blow in my career path and also on my life.' 61 In his original application for a protection visa, the appellant relevantly answered questions as follows: 'Why did you leave [Bangladesh]? I am one of the victims of professional hazardness. In order to perform my professional responsibilities I have been targeted by the influential person of the society. I was threatened a few times not to publish anything against them. I have failed to negotiate with immoral activities that is harmful agaist [sic] the interest of the people of Bangladesh. I wrote in the newspaper against the officials of Bangladesh Footbal [sic] Federation in regard to their misappropriation of funds. I also wrote against the secretary of Mohammadan Club. I criticised the activities of present government. I realised that it is my moral obligation to protest against the policies of the government, that does not reflect benefit for the people. As such government and these influential people had been working against me. … Who do you think may harm/mistreat you if you go back? The influential political and social leader against whom I wrote in the newspaper and flushed to the public regarding the misappropriation of funds, they will harm me on my return back to Bangladesh. Do you think the authorities of that country can and will protect you if you go back? If not, why not? It is evident that the current government of Bangladesh has failed to protect its citizens from private harm, and also has proved its inability to provide meaningful protection. …' 62 In the reasons for the decision of the delegate, the delegate summarised the appellant's claims as follows: '1. The applicant claims to be a sports journalist in Bangladesh, and that his political sympathies lie with the Jatiya party and ex president Hussain Mohammed Ershad.

He believes he is an outspoken sports journalist who is unafraid to speak his mind and write the truth. He believes his life is in jeopardy in Bangladesh because of this.

The applicant claims to have been invited to Australia by the International Paralympic Games Committee, to cover the Paralympic Games and he came because he saw that it was a way out of Bangladesh and the risks associated with that country.

The applicant states that some very influential people in Bangladesh are corrupt and he had identified and publicised corruption amongst sports officials including a very politically and socially influential individual - the General Secretary of the 'Mohammadan' football club. He claims as a result, false charges have been laid against him with the police, and since he arrived in Australia he has been removed from his job at the Ajker Kagoj newspaper and a warrant issued for his arrest. He states that the main reason for this happening is that (a) he did not abide by the instructions of those influential members of society, and (b) his political beliefs.

The applicant claims to have been very active in politics during his student days at Dhaka university where he became very involved with the Jatiya Party. He claims he has remained very involved and is an active supporter and member of the Party to this day.

The applicant claims his active support for the Jatiya Party has resulted in serious detriment to his career, harassment, discrimination, intimidation and physical assault. He believes his life is at risk should he return to Bangladesh.' There is no specific reference to a claim to fear persecution by reason of membership of the particular social group consisting of journalists. 63 On 16 November 2001, following the decision of the delegate, the appellant's adviser wrote a submission to the Tribunal which included the following: 'We are providing a large number of documents in support of his application that provide clear evidence of his claims and fears. We submit you to take into consideration the politically motivated proceedings against applicant. We also draw your attention to recent harassments, assaults and threat of journalists by the current BNP government and their members during undertaking of their professional responsibilities. The journalists were harassed in the parliament by the authority while they attended the oath ceremony of President Dr. Badrudoza Chowdhury on 14 November 2001. We also enclose English translated copies of various articles the applicant published in the newspaper The Ajker Kagoj against the sports officials, the news published in the newspaper highlighting the harassment of the journalists and deteriorating situation of human rights violations, letter from Bangladesh Sports Writers Association and copy of cases filed against him. The applicant was harassed, threatened and physically intimidated by Mr Mosaddek Hossain Falu and his gang on 15 October 2000 in relation to publish an article in the daily Ajker Kagoj against his misappropriation of fund of the renown Mohammadan Club of Dhaka. Mr Falu is private secretary of Prime Minister Begum Kaleda Zia and one of the most powerful persons in Bangladesh. Mr Falu is the threat to his life. He has every chance of being persecution on his return back to Bangladesh. The applicant's close personal connection with Jatiyo Party makes him particularly vulnerable at the hands of the present administration. … Applicant will experience persecution and lack of protection on his return back to Bangladesh due to his political affiliation and brave commitment to his profession. Fear of persecution and lack of protection are themselves inter-related elements. The persecuted person clearly do not enjoy the protection of their country of origin, while evidence of the lack of protection on either the internal of external level may create a presumption as to the likelihood of persecution and to the well-founded ness[sic] of any fear. … Country information reports presented at page 5 and 6 of the decision record which clearly indicates human rights abuses and reasonable restriction on freedom of speech, expression of views and independent journalism having occurred in the context of the influence of the government. The report goes on to indicate that politically motivated violence in Bangladesh was widespread. Both opposition and ruling parties use actual and threatened violence to achieve political ends. Political violence has accelerated since the parliamentary election held in October 1, 2001. At any rate, our client respectfully maintains that there is an indisputable nexus established between his physical assault and the expression of his opinion such that were he would not involve in these matters he would not have been maltreated in any way.' 64 The submission on behalf of the appellant's adviser summarised the appellant's claim as follows: '(a) The applicant is outside his country.

(b) His claims are grounded in events, which took place in Bangladesh.

(c) The applicant has a fear which is well founded in the circumstances in that there is a real chance that he would find himself a victim of persecution if he returned to Bangladesh, having regard to the evidence submitted.

(d) His persecution arises from the convention-based ground of his political activities as member of the Jatiya Party in Bangladesh'

65 While there are references to the position of journalists in the submission and the enclosures refer to harsh treatment of journalists, there is no explicit suggestion in the submission that there is a particular social group in Bangladesh consisting of journalists who had written articles critical of political groups or their supporters. 66 In the course of its reasons, the Tribunal said: 'I advised [the appellant] that even if I accepted his claims at face value, it appeared that the people who had threatened him wanted to silence him or seek revenge and it did not appear that he was at risk of harm for any of the reasons contained in the Convention. [The appellant] suggested that he or those who wished to harm him belonged to a particular social group. …a former colleague of [the appellant's] also attended the hearing. It was established that he had arrived in Australia in February 2000 and had no first hand knowledge of his problems, but could give evidence of the problems which members of the Bangladeshi media sometimes face. I told [the appellant] that I accept that members of the Bangladeshi media were sometimes victims of violence or harassment from the government and/or powerful individuals.' (emphasis added) Thus, while the submissions made on behalf of the appellant by his adviser did not refer to a particular social group, that term appears to have been used in the course of the hearing before the Tribunal. Even so, the reference in the passage cited above is curious in that it refers to either the appellant or those who wished to harm him as belonging to a particular social group. The material set out above does not suggest that the appellant squarely raised before the Tribunal a contention that he had a well-founded fear of persecution by reason of his membership of a particular social group consisting of journalists who have written articles critical of political groups or their supporters. Nor was there other evidence before the primary judge to suggest that the appellant had advanced such a claim to the Tribunal. 67 It is against that background that it is necessary to consider the reasons of the Tribunal and the complaint that the Tribunal did not fairly address the question of whether or not the appellant has a well-founded fear of persecution by reason of his membership of a particular social group consisting of journalists who have written articles critical of political groups or their supporters.

THE FINDINGS AND REASONS OF THE TRIBUNAL 68 The Tribunal accepted that the appellant published several articles critical of leading figures in the sporting world in Bangladesh. However, the Tribunal considered that the appellant had exaggerated the extent of his problems. The Tribunal did not accept that any cases, false or otherwise, had been filed against the appellant in Bangladesh and considered that the documents provided by the appellant in support of his claims to that effect were false. 69 The Tribunal accepted that the appellant may have been threatened and may have been warned to cease writing articles containing the kind of accusations he made in the articles that he wrote in October 2000, but considered that he had exaggerated the number and seriousness of the threats made against him. 70 The Tribunal referred to a report on the misappropriation of funds by officials of the Bangladesh Football Federation ('BFF') that the appellant claimed to have published on 6 October 2000 and a report on the Mohammadan Sporting Club, accusing the general secretary of stealing money from the Club, that the appellant claimed to have published in the following week. The Tribunal also referred to the claims by the appellant that, before leaving Bangladesh, he was threatened several times by members of a gang attached to the people who had allegedly misappropriated funds from the BFF. The Tribunal considered that, if the BFF or the Mohammadan Sporting Club had intended to kill or seriously harm the appellant for writing these articles, they had time to do so before he left the country. The Tribunal considered that neither group would have any interest in the appellant if he returned to Bangladesh now. 71 The Tribunal also observed that the appellant had never claimed that he was at risk of harm from people who disagree with him over political issues. While the appellant said he had been a member of the Jatiya Party until 1994, when he left the party, he said that he had never had any problems as a result of his involvement with that party or his involvement in any other political activities. The appellant's claims before the Tribunal were limited to those based upon the threats made as a consequence of his activities as a journalist. 72 The Tribunal concluded that the appellant is not currently at risk of serious harm because of the articles he wrote in October 2000. The appellant had said that he had not named individuals in any of the earlier articles written in 1994, 1995 and 1998, as that would have caused too many problems. He had only written articles naming individuals in relation to the BFF and the Mohammadan Football Club because he was about to leave Bangladesh and thought he would therefore be safe. 73 The Tribunal's conclusion, that the appellant is not currently at risk of serious harm because of his articles, was sufficient to dispose of the applicant's claim to be entitled to the grant of a protection visa. In the light of that conclusion it was unnecessary for the Tribunal to proceed to consider, as it did, in the alternative, whether the applicant would be at risk of harm for a convention reason if the Tribunal accepted that the appellant was at risk of harm because of the newspaper articles. 74 The question before the Tribunal was whether the appellant was at risk of harm from individuals about whom he had published adverse comments. The appellant and his advisers did not contend that the appellant would not be afforded state protection simply because he was an outspoken journalist. Accordingly, even if the Tribunal failed to address adequately the question of whether or not the appellant was a member of a particular social group, consisting of journalists who had written articles critical of political groups or their supporters, there was no denial of procedural fairness because that question did not fairly arise before the Tribunal.

CONCLUSION 75 The appellant has not demonstrated any error on the part of the primary judge in concluding that there was no jurisdictional error on the part of the Tribunal. It follows that the decision of the Tribunal is a privative clause decision within the meaning of s 474(2) of the Act and, accordingly, s 474(1) of the Act precludes any order interfering with the decision of the Tribunal. The appeal should be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate: Dated: 5 August 2004 Counsel for the Appellant D Godwin for the purposes of preparing submissions after the hearing:

Counsel for the Respondent: R Bromwich

Solicitor for the Respondent: Clayton Utz

Date of Hearing: 3 May 2004

Date of Judgment: 5 August 2004

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