Monsur, Abul v Minister for Immigration & Multicultural Affairs

[1997] FCA 728

IN THE FEDERAL COURT OF AUSTRALIA                 ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY                ) NG 575 of 1996
  )     
GENERAL DIVISION  )     

BETWEEN:               ABUL MONSUR   

Applicant

AND:  MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

Coram:           Davies J.
Date:              30 June 1997
Place:              Sydney

REASONS FOR JUDGMENT

This is an appeal from a decision of the Refugee Review Tribunal.  The appeal is brought on the basis that there was an error of law in that the Tribunal misunderstood the relevant provisions which it had to apply.  Those provisions were contained in Article 1A(2) of the Refugee Convention and Protocol which defined a refugee as being a person who:

“owing to 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 and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

The present is an unusual case.  The applicant, Mr Abul Monsur, gave evidence to the Tribunal that back in 1978 or 1979 his family had purchased a block of land which was wanted by another man.  The land was purchased in Bangladesh.  The other man who wished the land went to India for some time and returned to Bangladesh with a false title deed to the land saying that he had purchased it from the previous owner's brother who had returned to India at an earlier time.

This man who had the false title deed was apparently a relative of the current Acting President of one of the political parties of Bangladesh, the Jatiya Party.  The man chased the tenants of the applicant's family off the property and moved there himself.  The applicant's family went to court and a decision was given at first instance that the land lawfully belonged to the applicant's family.  Apparently the matter went on appeal but has not yet been decided, for there are lengthy delays in the appellate system in Bangladesh.

In 1982, a General Ershad, who had formed the Jatiya party, took control of Bangladesh.  He became president and the Jatiya party won the majority of seats.  The relative of the man who was claiming the land became Prime-Minister in General Ershad's government.  The man contesting the applicant's rights then began harassing the family and he used his political status and influence to harass them.

In 1984, the applicant was arrested on charges of illegal possession of firearms.  He stated, and the Tribunal did not find otherwise, that he was innocent of the charge.  He said that he was arrested in the early hours of the morning, taken to the police station and, when it was daylight, he was taken out of his cell to find that the man who was contesting the family's land ownership was there.  He was made to pose holding a gun while his photograph was taken.  He gave evidence that he was taken before a magistrate the next day and remanded for seven days.  During this time he was beaten repeatedly and his hand was broken.  Those matters do not appear in the Tribunal's decision but those facts did not affect, I think, the Tribunal's decision.

The applicant was released from gaol without any charge being pursued but he lost his job as a consequence of the charges and of his detention.  He then commenced his own small electrical and car repair business in Dhaka.  In 1988, the prosecution was re-opened.  The applicant said that two of his brothers had by this time also been harassed and they had left the country.  The applicant said to the Tribunal that the man contesting the family's land was a friend of the senior police officer in charge of the matter.  He said that the matter went to court and the police officer testified that he had arrested the applicant and that the applicant was found to be in possession of the gun he was photographed with.  The gun was tendered in evidence.

The applicant said that he did not comply with the reporting conditions because the police officer was a false witness.  He said he moved around to avoid detection and ultimately, in 1991, he found someone who was able to help him obtain a passport and he then came to Australia.  The applicant said to the Tribunal that he feared he would be arrested if he went to Bangladesh as there was a warrant out for his arrest.  The Tribunal accepted the substance of the matters which the applicant put, although not all elements.

The Tribunal considered that the politics of the matter were of no significance.  The Tribunal said in its reasons that although the applicant and his father had had an association with the Awami League and the man who claimed ownership of the land had been a close relative of the leader of the Jatiya Party, this fact did not suggest that there was a political dispute between them.  The Tribunal pointed out that, since 1991, the Awami League has in fact been the second largest party in Bangladesh, while the Jatiya Party has been merely the third largest party.  The Tribunal said:-

"Although the applicant and his father supported one political party and the man contesting the ownership of the land supported another party, this is coincidental."

The Tribunal rejected the claim for refugee status on the ground that the reason for the harassment was an attempt to obtain possession and ownership of the land.  The Tribunal found:-

"In any event the reason for the harassment is clearly an attempt to get the applicant's family off their land or to relinquish ownership."

The Tribunal said that, as that was the sole reason for the harassment, the applicant's claim must fail as falling outside the ambit of the Refugee Convention. 

It was argued by Mr Newman, solicitor for the applicant, that this conclusion constituted an error of law, because it was not necessary that the applicant be persecuted by reason of his political opinions, and that it was sufficient that the other man's political connections were being used to harass and persecute the applicant.

This suggested interpretation does not fit well either with the words of the Convention or with the background to the Convention.  The Convention looks primarily to the circumstance where the governing authorities in a country persecute inhabitants in that country on the basis of their race, religion, nationality, membership of a social group or their political opinion.  It is because protection is not given by those who are in control of the country that it has been thought that the protection of another country should be given to a person who is so persecuted, and it is for that reason that, in looking at a Convention claim, decision-makers almost inevitably look at the way the governing authorities treat persons in their country, whether the courts of the country are independent, whether protection is given to people who are being improperly dealt with and so on.  In the current case, the Refugee Review Tribunal looked at the question of the independence of the courts in Bangladesh, and found that they were independent and that they had given protection to the applicant and his family by finding in favour of the family's claim to ownership.

That is the rationale for the Convention.  It is the reason why another country gives protection when the authorities in the person's own homeland will not do so, and may indeed be the persecutors.  That is not of course the limit to the operation of the Convention but that background suggests that the Convention does not have the meaning that Mr Newman has submitted it carries.

More recently in Ram v Minister for Immigration & Ethnic Affairs (1995) 130 ALR 314 at 317, Burchett J said:

“The link between the key word ‘persecuted’ and the phrase descriptive of the position of the refugee, ‘membership of a particular social group’, is provided by the words ‘for reasons of’ - the membership of the social group must provide the reason. There is thus a common thread which links the expressions ‘persecuted’, ‘for reasons of’, and ‘membership of a particular social group’. That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase ‘for reasons of’, and fastens upon the victim’s membership of a particular social group. He is persecuted because he belongs to that group.”

I agree with his Honour's approach in that, although the convention does not use the term “his or her” before the reference to “race, religion, nationality ...”, it is referring to persecution by reason of the applicant's race, religion, nationality and so on.  In some cases, of course, it is not necessary that the person actually holds the political opinion or religious beliefs which are ascribed to the person by the persecuting authority.  It is sufficient that the person is thought to have such beliefs and is persecuted for that reason.

Thus, in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 379, Mason CJ referred at 390 to the fact that Mr Chan was subjected to discrimination because unacceptable political opinions was ascribed to the family of which he was a member. Dawson J said at 396 that the convention reason was present because Mr Chan's family was perceived to be anti-revolutionary and because Mr Chan was perceived to be of the same persuasion.

The Convention looks to persecution because of the holding or the perceived holding of political opinions or beliefs.  The applicant must fall within one of the descriptions of which the Convention specifies.

In my opinion, the Tribunal was correct in its approach to the interpretation of the Convention and I think it would have been wrong had it taken the approach which Mr Newman propounds, namely that it is sufficient that the man who sought the land used his political connections to cause trouble for the applicant.

The other matter which Mr Newman put forward was that the applicant, Mr Monsur, was a member of a social group and that the Tribunal did not consider this aspect of the matter.  However, no relevant social group has ever been identified in the hearing of these proceedings.  Mr Newman went no further than to say that Mr Monsur had been a member of some amorphous social group, that is to say, the group without the connections of the man seeking the land.  However, that is not a social group of the type intended of the Convention. It is sufficient for me to refer to Applicant A v Minister for Immigration & Ethnic Affairs (1996) 142 ALR 331, in which the nature of a social group for the purposes of the Convention was considered.

I have read the decision of the Tribunal and I have read the files which are in evidence.  It does not seem to me that there was any error of law in the Tribunal's approach.  For those reasons the application must be dismissed with costs.

I certify that this and the 7 preceding pages
are a true copy of the reasons for judgment
herein of  the Honourable Justice Davies.

Associate:

Solicitor for the applicant:  M. Newman, of Newman & Associates

Solicitor for the respondent:                  A. Markus, of the Australian Government Solicitor

Date of hearing:  30 June 1997

Date of judgment:  30 June 1997