Sikder Aslam v Minister for Immigration & Multicultural Affairs [2001] FCA 673 | Case summary

REASONS FOR JUDGMENT 1 In this matter the applicant seeks an order for review by the Court of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 14 February 2001, in which the Tribunal affirmed the decision of a delegate of the respondent Minister refusing the grant of a protection visa under the Migration Act 1958 (Cth) (the Act). The application bears a notation as being filed under Order 54 and Order 54B of the Federal Court Rules. It is necessarily made under Order 54B: s.485 of the Act. 2 The applicant is a citizen of Bangladesh. He arrived in Australia on 8 September 1998. On 22 October 1998 he applied for a protection visa under the Act. Accompanying that application was a signed statement dated 22 October 1998. 3 By letter dated 26 November 1998 a delegate of the Minister informed the applicant that his application for a protection visa was refused. The reasons for that refusal were recorded in writing and dated 26 November 1998 and reflected a decision by the delegate that the Applicant was not a person to whom Australia owed 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 1973 (to which I will refer to as the Convention). 4 The applicant sought review of that decision in the Tribunal by application made on 14 December 1998. 5 The Tribunal affirmed the delegate's decision on 4 July 2000. That decision of the Tribunal was the subject of an application for review to the Court. On 5 October 2000 the Court set aside the decision and remitted the matter to the Tribunal. 6 On 14 December 2000 a hearing was held before the Tribunal. At the hearing the applicant gave evidence. 7 On 14 February 2001 the Tribunal handed down its decision to the effect that the applicant was not entitled to a protection visa. It is this decision in respect of which the applicant now seeks review. 8 It is necessary to examine the reasons of the Tribunal and the attacks made on them in the application for review and in the submissions made to the Court. 9 The Tribunal first identified what it saw as four key elements of the definition of "refugee" (found in Article 1A(2) of the Convention) made relevant by ss.36 and 65 of the Act and Part 866 of Schedule 2 to the Migration Regulations: (a) that the applicant be outside his or her country; (b) that the applicant fear persecution; (c) that the applicant fear persecution for one or more of the reasons set out in the Convention: race, religion, nationality, membership of a particular social group or political opinion; and (d) that the applicant's fear of persecution for a Convention reason be "well-founded". 10 As to the second matter just referred to, persecution, the Tribunal passed the following remarks: Not every threat of harm or interference with a person's rights for a Convention reason constitutes "being persecuted". In Chan's case [Chan Yee Kin v Minister for Immigration & Multicultural Affairs (1989) 169 CLR 379] Mason CJ referred to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage". In the same case, McHugh J said that the notion of persecution involves selective harassment, and that in appropriate cases it may include single acts of oppression, serious violations of human rights, and measures "in disregard" of human dignity. In Applicant A's case [Applicant 'A' v Minister for Immigration & Multicultural Affairs (1997) 190 CLR 225], his Honour stated that whether or not conduct constitutes persecution does not depend on the nature of the conduct but on whether it discriminates against a person for one of the Convention reasons. Persecution may be directed against a person as an individual or as a member of a group. 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. However the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor. 11 As to the third matter referred to, that the fear of persecution must be for one or more of the Convention reasons, the Tribunal passed the following remarks: The phrase "for reasons of" serves to identify the motivation for the infliction of the persecution. However, the persecution feared need not be solely attributable to a Convention reason. It may be enough if race, religion, nationality, membership of a social group, or political opinion, is but one of several reasons for the persecution feared. 12 As to the fourth matter referred to, that the fear must be "well-founded", the Tribunal passed the following remarks: This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a "well-founded fear" of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A "real chance" is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. 13 The Tribunal then added the following paragraphs: In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality. Whenever the protection of the applicant's country is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee. Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future. 14 While the above matters may not be an exhaustive legal framework for a decision of the kind before the Tribunal, of themselves they display no vitiating misunderstanding of the applicable law within the meaning, or for the purposes, of s.476(1)(e) of the Act, in particular in the light of Minister for Immigration & Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. They also reveal that the Tribunal attended to the whole definition of "refugee" contained Article 1A(2) in the Convention not just its individual conceptual parts: see Ram v Minister for Immigration & Multicultural Affairs (1995) 57 FCR 565 at 568; Applicant 'A' v Minister for Immigration & Multicultural Affairs (1997) 190 CLR 225 at 242, 257 and 283; and Chen v Minister for Immigration & Multicultural Affairs (2000) 170 ALR 553 at 559 [24]. As can be seen from what follows, the grounds for review identified in the application for review do not suggest any such error (save, perhaps, in two respects, to which I refer below); nor did the applicant's oral submissions. 15 The Tribunal had before it the Departmental file, written submissions in support of the application, the previous Tribunal file, and the current Tribunal file. Also, the applicant gave oral evidence to the Tribunal. 16 The Tribunal set out the applicant's claims in the following way: The applicant states in a written statement that he had joined the Bangladesh Nationalist Party's (BNP) student wing in the mid-1980's and had been made general secretary of the youth wing's branch at his college. When at university in the late 1980's, he had joined the BNP's youth wing and had had frequent trouble with police while demonstrating and joining general strikes against the rule of the former president and army dictator, General Ershad.

(d) The Tribunal was prepared to accept that the applicant might have had to cope with harassment in the form of false charges laid by political opponents. It was also prepared to accept that he had been attacked on two occasions, but it was not satisfied that these attacks were more than random acts of violence. (e) The Tribunal considered that the material before it, first, did not support the claim that BNP members and workers faced persecution. It was satisfied that this material demonstrated that any such harassment and random violence experienced by some BNP members did not "uphold an argument that the BNP is a persecuted party". Secondly, the Tribunal considered that the material supported the view that it had come to that there was protection available for the applicant in Bangladesh in relation to the harm of a kind which he had suffered. In particular it referred to the following matters. (i) It found that it was not the case that members of opposition political parties were at risk of harm simply for holding or expressing anti-government views. (ii) It found that the evidence revealed that the BNP activists at risk of harm were those who engaged in confrontational public protest and vendettas which were known to turn violent. (iii) It found that the violence was vendetta-driven both across and within parties, rather than being a mark of oppression by the ruling party against other parties. (iv) It found that it was possible for BNP members to participate freely in politics without taking part in activities that were driven by violent confrontation. (v) It did not accept that the Bangladeshi authorities tolerated or encouraged harm being done to BNP members. It referred to the recent enactment of laws designed to crack down on political violence and the abuse of the prosecution system, such as had arisen from the laying of false charges. (vi) The Tribunal found that the authorities were willing and able to provide protection for people from violence including political violence. (f) The Tribunal considered but did not accept that there were individual factors that showed that the applicant in particular would face persecution as a result of his political opinion or position even if his party was not being persecuted in general; the finding of his status as an "ordinary party official of middle rank" was again referred to. Whilst the Tribunal accepted that the applicant had suffered harm in random attacks carried out by opposition activists and that given the state of Bangladeshi politics he might face more harm of that nature, it considered that he would be able to enlist the protection of the authorities over the attacks. (g) The Tribunal also considered that the Bangladeshi judicial system would protect the applicant against wrongful conviction for any false charges laid against him. 21 For all these reasons the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason in Bangladesh and it made the summary of findings and conclusion to which I have referred. 22 The application for an order for review is in the following form: The applicant is aggrieved by the decision because- 1. The applicant was a leading activist of the party and this was not considered by the delegate; the delegate also considered that the applicant experienced mistreatment by his political opponents but did not amount to persecution by the delegate. 2. The applicant's claim was well founded which was not considered by the Tribunal member. 3. The Tribunal passed an unrealistic decision and the applicant has a real chance of being persecuted upon return to his home country; the Tribunal ignored this. The current situation of the applicant was not taken into account by the Tribunal. 4. The Tribunal is of the opinion that the applicant had been persecuted in the past. However the Tribunal denied that there was a real fear of persecution. The grounds of the application are: 1. The Tribunal member has taken irrelevant consideration in deciding the fate of the applicant's claim which is issue in accordance with section 476(3) d (sic) of the Migration Act 1958. 2. The Tribunal member forwarded his decision in considering the applicant's case in bad faith, which is reviewable in accordance with section 476(3)(f) of the Act. 3. The Tribunal member made some errors in deciding the case. 4. The Tribunal erroneously portrayed the applicant as a low profile leader which is not true. The applicant was a district executive high-level leader. 5. The Tribunal findings were erroneous and without any reasonable basis. 23 The first paragraphs of the application numbered 1 to 4, identifying the grievance of the applicant, canvassed various factual matters none of which identifies any issue of law or ground for review identified in s.476 of the Act, with the possible exception, reading together the second part of the paragraph numbered 1 and the paragraph numbered 4, that the Tribunal misdirected itself as to whether the facts, as found, necessarily gave rise in law to "persecution" and a well-founded fear of persecution. I will proceed on the basis that the second part of the paragraph numbered 1 is intended to convey a complaint that, in effect, the Tribunal erred in law when, having found in the way it did that the Applicant had experienced past mistreatment, it did not consider that thereby a finding of persecution necessarily followed. (The first part of this paragraph is really only a factual challenge to the findings that the applicant was a party worker of moderate importance and that he had exaggerated his position in the party.) I will also proceed on the basis that the paragraph numbered 4 is intended to build on the second part of the paragraph numbered 1 and is intended to convey a complaint that what was accepted as having happened in the past meant that a finding of the existence of a well-founded fear necessarily followed. 23 . 24 As I have said (see para [9] above), the Tribunal's reasons commenced by identifying what the Tribunal saw as the key definitional elements of the definition of "refugee" under Article 1A(2) of the Convention, made relevant by s.36 of the Act and Part 866 of Schedule 2 to the Regulations. The legitimacy of this analytical division can be seen from Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559 at 570. It then passed general remarks on the content, as a matter of law, of the notion of persecution (see paragraph [10] above) and on further matters concerning the availability of protection relevant to Article 1A(2) (see paragraph [13] above). 25 In its factual analysis of the applicant's claims, having made a finding that the applicant's claims of facing persecution lacked credibility, the Tribunal said: I am prepared to accept that the applicant might have had to cope with harassment in the form of false charges laid by political opponents and that he had been attacked on two occasions, as he has described. I am not satisfied that the physical attacks are more than random acts of violence. 26 The Tribunal then proceeded to set out its factual findings that the material before it did not demonstrate "that such harassment and random violence uphold an argument that the BNP is a persecuted party". At a further point in its reasons the Tribunal again explained that it accepted that the applicant had had false charges laid against him and had "suffered harm in random attacks carried out by opposition activists, and that given the 'rough and tumble' of Bangladeshi politics, he might face more harm of that nature". 27 In the summary of its findings, the Tribunal repeated what it had said in the body of its reasons, to the effect that it was not satisfied that the nature of political violence in Bangladesh was such that BNP party members, such as the applicant, faced persecution simply by reason of their membership of the party, nor that there were factors particular to the applicant that would "cause him to be at risk of persecution even when his party in general is not being persecuted". For reasons, as found by it, of his status in the party, the Tribunal was not satisfied that there was this possibility. In the summary the Tribunal repeated its acceptance of certain attacks on the applicant by opposition activists, but was not satisfied, given the random and retaliatory nature of the violence and the fact, which it found, that the BNP has been the instigator of such violence on occasions, that the harm that had been suffered by the applicant could be termed persecution "in the absence of other factors which might credibly substantiate an application for protection". 28 The Tribunal acknowledged that a situation of generalised violence does not necessarily mean that persecution does not also co-exist. Conversely, of course, the existence of a situation of generalised and random violence does not mean that those who suffer harm in those situations are necessarily "being persecuted". I do not consider that, in not characterising the harm which it accepted had been suffered by the applicant as persecution, or in not concluding that the past events, which it accepted as having occurred, necessarily required it to be satisfied of the existence of a well-founded fear of persecution, the Tribunal exhibited any legal error reviewable under s 476(1). The accepted instances of harm and of the laying of false charges were relevant as probative factual matters to be weighed by the Tribunal in coming to a determination, and reaching a state of satisfaction, as to whether the applicant did,or did not, have a well-founded fear of persecution for a Convention reason in its consideration of the applicant's claim of refugee status, by reference to the definition of 'refugee" in Article 1A(2), read as a composite whole. The Tribunal, as a matter of fact finding, accounted for the instances of past violence and the false charges in the light,and in the context, of the need for it to make findings, and reach a state of satisfaction, about whether the applicant had this relevant well-founded fear. The Tribunal did not consider that, as a matter of fact, an ordinary member of the BNP would suffer persecution for that reason alone, nor did it consider, as a matter of fact, that there were any factors that would cause the applicant risk of harm. The Tribunal found, in the context of what it accepted had happened, that any harm suffered, or likely to be suffered, by a person of the applicant's status, was of a random nature and for this reason could not be characterised as persecution. These were factual matters. The Tribunal was not obliged, once having accepted past acts of violence or of the laying of false charges, to find that those events amounted to persecution for a Convention reason or that the applicant, because of the past occurrence of those events, must have a well-founded fear of persecution for a Convention reason. The Tribunal took the facts which it accepted as having happened into account and came to a conclusion in terms of the Convention definition. 29 There was no vitiating error (see para [14] above) in the general remarks of the Tribunal as to the applicable law, nor did the Tribunal display any misconception of the concept of persecution under the Convention in determining,or in the manner of determining, whether the facts, as found, constituted persecution, nor did the Tribunal display any misconception as to its task in assessing the existence or not of a well-founded fear of future persecution for a Convention reason: cf. Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575-576; and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 240. 30 The Tribunal also found on the material before it that the applicant would, in respect of harm of the kind previously suffered, be able to avail himself of the protection of the authorities in Bangladesh. This finding was an integral part of the Tribunal's fact finding concerning the questions before it, made mandatorily relevant by the Act, as to whether it was satisfied that the applicant was a refugee under Article 1A(2) of the Convention, in particular whether he had a well-founded fear of persecution for a Convention reason and was unable or, owing to such a fear, unwilling to avail himself of the protection of Bangladesh. 31 Thus, I do not think that any reviewable error is revealed by the way the Tribunal dealt with what it accepted as past instances of harm. 2432 The five nominated grounds of review set out in the application likewise likewise do not reveal any legitimate ground for review under s.476. 2533 Grounds 1 and 2, in terms, identify matters which are expressly removed as grounds for review: s.476(3)(d) and s.476(3)(f). 2634 The terms of ground 3 can only identify a factually-based merits review of the decision. This is not open. 2735 Likewise, ground 4 concerns a factual matter which reflects a disagreement by the applicant with the Tribunal's findings. This is not a matter which the Court is able to review. 36 Ground 5 likewise identifies a factual review. To the extent that ground 5 might also be said to seek to raise a question of a failure properly to deal with a matter on a reasonable basis such that it might be said that there was a failure to assume jurisdiction correctly or to deal with what might be referred to as jurisdictional facts (see Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 [1], [74-83] and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 650-659 [128]-[156]), I reject any such proposition. The Tribunal's reasons reflect an apparently serious and genuine application by it to the task before it, and an approach which is not illogical or irrational or unreasonable, or unsupported by probative material or logical grounds. The Tribunal attended to the questions mandated by the Act and Regulations under ss. 36 and 65 and Part 866 of Schedule 2 respectively and it cannot be said that it failed to deal with any factual topic or matter thrown up by the claims of the applicant which could be said to be evidentially probative, and, in that sense, relevant to the questions mandated by the Act. It may be that the applicant deeply disagrees with the factual conclusions and findings of the Tribunal. However there was material before the Tribunal capable of founding its findings and conclusions. The material before the Tribunal, reproduced in the Court Book in the review application and to which the Tribunal made express reference in its reasons, included a number of extracts from an 'on-line' newspaper dealing with the political situation and political events in Bangladesh, a chapter on the country from a publication dealing with the region, a country-specific profile of asylum claims and country conditions from the United States Bureau of Democracy, Human Rights and Labour dated February 1998, an excerpt from the Amnesty International Annual Report for 1999, press clippings and Reuters' cables, the Australian government's Country Information Service Country Information Report of June 1996 (erroneously referred to in the Tribunal's reasons as being of date 1998), and a Department of Foreign Affairs and Trade report of April 2000. 37 By putting the matter as I have in the last paragraph I should not be taken as stating a view that each of the matters there referred to would necessarily, if it existed, give rise to grounds for review under s. 476(1). However, the matters which I have mentioned appear to me to encompass what might conceivably be said to found an attack on this decision by reference to these jurisdictional concepts. 38 Mr Lloyd, who appeared for the respondent, in oral submissions in elaboration of his written submissions, emphasised two critical findings of the Tribunal: first, the finding of the moderate level or profile of the applicant as a BNP activist, and, secondly, the availability of protection from the Bangladeshi authorities. The second of these findings was crucial, he submitted, to the notion of persecution, and to the lack of any foundation for the fear of persecution. He referred to Applicant A v Minister for Immigration & Multicultural Affairs (1996-1997) 190 CLR 225 at 223and 258; Rahman v Minister for Immigration & Multicultural Affairs [1999] FCA 73 [10]; Minister for Immigration & Multicultural Affairs v Tas [2000] FCA 1657; [38]-[42], [54] and [55]; and Woen v Minister for Immigration & Multicultural Affairs [2000] FCA 1912 [24]-[26]. The submissions of Mr Lloyd are, as far as they go, correct. The second of these findings can also be seen as central to the Tribunal's consideration of the whole definition of "refugee" under Article 1A(2) of the Convention, as a composite phrase, to which phrase the Act directed the Tribunal and to which phrase the Tribunal gave consideration. 39 The applicant's oral submissions were directed to factual matters and the alleged erroneous nature of the Tribunal's conclusions. They amounted to an invitation to re-visit the Tribunal's findings of fact. This is not open. 40 For the above reasons the application must be dismissed. I see no reason why the dismissal should not be with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Sikder Aslam v Minister for Immigration & Multicultural Affairs

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