Mzwix v Minister for Immigration
[2005] FMCA 1854
•20 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWIX & ORS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1854 |
| MIGRATION – Protection Visa – whether jurisdictional error. |
| Rahman v Minister for Immigration & Multicultural Affairs (1999) FCA 73 Minister for Immigration and Multicultural and Indigenous Affairs: ex parteLam (2003) 195 ALR 502 |
| Applicants: | MZWIX, MZWIY & MZWIZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 592 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 10 March 2005 |
| Date of Last Submission: | 24 March 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 20 December 2005 |
REPRESENTATION
| Pro Bono Counsel for the Applicants: | Mr. F.J. Caldwell |
| Counsel for the Respondents: | Mr. E.J.C. Heerey |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6.500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 592 of 2004
| MZWIX, MZWIY AND MZWIZ |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application, the Applicants seek judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 April 2004, affirming a decision of the delegate of the First Respondent not to grant the Applicants a Protection Visa.
The Applicants are a Husband, Wife and Daughter and are all citizens of Bangladesh, of Bengali ethnicity and Muslim faith.
The Applicant Husband first arrived in Australia on 9 February 2001, under a Student Visa. He departed Australia on 18 June 2002 and travelled to Bangladesh, then returned to Australia on 6 August 2002 on a Second Student Visa. He departed Australia on 6 February 2003, travelled to Bangladesh and returned to Australia on 21 April 2003, under a Third Student Visa valid until 6 April 2004. The Applicant Wife and Daughter also arrived in Australia on 21 April 2003, under a Student Visa held by the Applicant Wife.
By application dated 2 June 2003, the Applicants applied to the First Respondent to provide them with the Protection Visas. A detailed written statement was provided by the Applicant Husband in support of his application, whilst the Applicant Wife and Daughter did not make any independent claims.
The Claims
The claims and evidence before the Tribunal were summarised by the Tribunal in the following terms:-
“ … The applicant is a national of Bangladesh. He is a Muslim, aged 24 years. He arrived in Australia in early 2001 on a student visa. He completed a secondary school education and part of a tertiary course in Bangladesh before coming to Australia. His wife was born in 1983 and their daughter in 2001.
The applicant claims that many family members were active as members and supporters of the Awami League (AL) and that since the election of the Bangladesh National Party (BNP) several of them have had to move away from their home area to the capital to avoid harm. He claims that they were threatened in their own district and now live in hiding in Dhaka. He claims that although he was not himself politically active he fears persecution at the hands of BNP supporters. He added that AL supporters are targeted throughout Bangladesh by supporters of the BNP.
He claims that his father's clothing factory in their local area was damaged by BNP terrorists in February 2003, a few days after one of his own return visits to Bangladesh. He said that his father reported the incident to the police, but he does not think the police acted on the complaint. He said his father told him that those responsible for the attack were BNP terrorists. He claims that his father was forced to close down his businesses as they were no longer viable after the attack on the larger factory.
The applicant resiled from a claim that his wife and daughter are at risk due to trafficking for sex. He said that he never made such a claim and does not know why it appears in his initial application for a protection visa.”
The Tribunal's Findings and Reasons
After setting out the claims, The Tribunal under the heading "Findings and Reasons" states the following:-
“ The Tribunal accepts that the applicant's family is well‑known as members and supporters of the AL. It notes that the applicant was not himself politically active and has never come to harm, including during two return visits to Bangladesh following the election of the BNP government.
Even if some of his relatives have moved to Dhaka for fear of BNP supporters it is manifest from material cited below that they are able to call upon the protection of the State if they should need to do so.
The applicant made no timely claim that his father's business was damaged. He was vague about details of the alleged event, even though he was present in Bangladesh at the time of the incident. The client that it was BNP rivals who damaged the business is mere speculation. Any such act is essentially criminal in nature and information cited below indicates that the authorities act to deal with violence regardless of the political allegiance of the perpetrators.
In assessing the available evidence the Tribunal does not accept that the business of the applicant's father was damaged by reason of his political opinion or for any Convention reason. If the alleged incident did, indeed, occur, the Tribunal does not accept in all the circumstances that it was directed against the applicant for any Convention reason or that the police would fail to act on whatever information was available to them.”
The Tribunal noted and gave weight to a number of Country Information Reports, which included reports from the Australian Department of Foreign Affairs and Trade (“DFAT”) dated 24 December 2001, 6 February 2003 and 13 December 2001. The Tribunal then proceeded to conclude the following:-
“ Aforementioned information indicates that political violence is common around the time of elections in Bangladesh, but abates thereafter. Reports of violence in relation to the 2001 elections indicate that the principal targets were members of minority religious groups, mainly Hindus, and some leaders and activists within the AL. The leaders of the BNP and AL recently vowed publicly to crack down on supporters within their ranks who are prone to use violence. There is no evidence that AL supporters are being targeted for violence by BNP members.
In considering all available material, including that submitted by the applicant, the Tribunal concludes that he would not face a real chance of persecution for any Convention reason. …”
Ultimately, the Tribunal after referring to two Federal Court decisions, one relating to a claim arising from Bangladesh, then concludes:-
“ In the present case the applicant's lack of a satisfactory explanation for his significant delay in applying for asylum, more than two years after his initial arrival in Australia, further indicates to the Tribunal that he did not have a strong or lasting fear for his personal safety or future wellbeing, and the Tribunal finds accordingly.”
The Amended Application
The Applicant was permitted to file and serve an amended application dated 9 March 2005. That application, according to the Applicants’ summary of argument, seeks to establish jurisdictional errors on the basis that the Tribunal:-
i)It misunderstood and/or misinterpreted the test and/or asked the wrong question in relation to the risk of persecution of AL members or supporters by non-state agents of persecution by relying on the dictum in Rahman v Minister for Immigration & Multicultural Affairs (1999) FCA 73 which:
a)ignored the element of selectivity and discrimination in violent political acts by non-state agents in Bangladesh,
b)failed to consider the presence of mechanisms in place in Bangladesh against the obligation of the State to take reasonable measures to protect the lives and safety of its citizens, including an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system.
ii)It made a finding that there was no evidence that AL supporters were being targeted for violence by BNP supporters when there was such evidence before and cited by the Tribunal. This finding was unsupported by evidence and was critical to the ultimate conclusion, and/or the material upon which the Tribunal relied in this respect was so inadequate that the only inference open is that it has applied the wrong test or was not satisfied in respect to the correct test that it was bound to apply.
Reliance on Erroneous Statement of Principle Involving Misunderstanding of Convention Definition
The Applicant accepted, that in order to succeed both grounds relied upon need to be established. It was acknowledged in the submissions that the Applicant did not make any claim that he was politically active or of any past persecution by him as an actual or imputed member or as a supporter of the AL, although his family was well‑known as members and supporters of that party.
To understand the reference in the grounds relied upon in the decision of Hely J in Rahman, it is useful to set out the passage referred to by the Tribunal where it states:-
“Additionally, the Tribunal notes the following remarks of Hely J in the Federal Court matter of S.K.M. Habibur Rahman v Minister for Immigration & Multicultural & Indigenous Affairs (unreported) 10 February 1999, wherein His Honour commented in relation to that Bangladeshi case that:-
"Despite finding that violence was a pervasive part of the culture of political life in Bangladesh, RRT was of the view, based on the independent evidence, that members or supporters of the Jatiya Party were not subjected to treatment which could be characterised as persecution by members or supporters of other political parties. Although RRT accepted that if the applicant returned to political activities upon returning to Bangladesh, he could be harmed by members of other political parties, if that occurred, it would be in the context of acts of violence committed by members of all Bangladesh political parties, and not as a result of persecution.
The fact that all political parties are from time to time involved in armed clashes with the police and with each other, as part of the political milieu of Bangladesh, does not mean that there is persecution within the meaning of the Convention, because the violence lacks the selective or discriminatory quality which is inherent in the notion of persecution, and because it lacks the requisite “official” quality in the sense that it is official, or officially tolerated, or uncontrollable by the authorities of Bangladesh."
In the written submissions filed on behalf of the Applicant in support of the first ground, it was submitted that the "nub of the Applicant's submission regarding jurisdictional error is that it asked the wrong question in relation to the risk of persecution by AL members or supporters by non-state agents of persecution". It was submitted, that it "did so by 'additionally' relying on the dictum in Rahman v Minister for Immigration & Multicultural Affairs (1999) FCA 73". The Applicant submitted the following:-
“ It relied on the principles expressed in the dictum which it is submitted are erroneous. At the heart of what Hely J. said is the proposition that harm by members or supporters of other political parties is not persecution because it occurs in the context of violence committed by members of all parties. His Honour says that harm feared on this account is not persecution because it lacks the selective or discriminatory quality inherent in the notion of persecution. With respect this must be wrong in principle. It is not an answer as Hely J. states to say that the violent political acts of other party supporters is not selective or discriminatory when by definition there is singling out for ill-treatment of opposition supporters as members of a group. The nature of political violence is by definition selective and/or discriminatory conduct. It is also clearly intended violence against members of the group.”
It further argued the reasoning adopted by the Tribunal ignored the element of selectivity and discrimination and violent political acts by non-state agents in Bangladesh.
The Applicant further submitted the following:-
“ The second limb of the dictum states that violence of the kind in question is not persecution because it lacks the requisite “official” quality in the sense that it is ... “uncontrollable” by the authorities of Bangladesh. In relation to the acts or conduct of the non-state agents this is wrong unless upon examination it can be said that there has not been a failure to provide adequate or effective state protection.”
Reference was made by the Applicant to various authorities. It was then argued further as follows:-
“ …
24. In the present case no attention was paid by the RRT to the issue of uncontrollability, and what it means, or to the question whether there are mechanisms in place so it can be said that there is adequate state protection. The Tribunal simply adopted the second limb of Hely J's dictum as applicable to the case without any inquiry whether the violence perpetrated by, for example, BNP members was persecution which consisted of either a failure or inability of a government effectively to protect the basic human rights of its nationals.
25. The RRT failed to consider what mechanics there were in place in Bangladesh, matched against the obligation of the state to take reasonable measures to protect the lives and safety of its citizens. When seen in combination with the error which preceded the reference to Hely J's dictum, the errors in characterising what can constitute persecution were errors in the construction of the convention definition. They directly affected the tribunal's decision on the ultimate issue of whether the applicant faced a well‑founded fear of persecution were he to return to Bangladesh.”
The Respondents, after referring to the extract from the decision of Hely J in Rahman, noted the Applicant's contention and in particular the argument that the comments of Hely J "ignore the elements of selectivity and discrimination in violent political acts by non-state agents in Bangladesh".
The Respondents submitted this is incorrect and it was submitted the comments of Hely J included and did not exclude the relevance of selective and discriminatory violence by non-state agents. It was argued that "the inclusive relevance of violence by non‑state agents, in addition to violence by state agents, is inherent in the notion that it may be 'tolerated or uncontrollable' by the authorities of the state. It was argued that it would be a "perverse reading of Hely J's comments to say that His Honour excluded the relevance of such violence by non‑state agents".
The Respondents further submitted that Hely J did not say that "such violence could not constitute persecution for convention purposes". It was submitted that, "Rather, His Honour said that violence between political parties did not of itself amount to relevant persecution, because it would always be necessary to consider the additional factor of whether the violence was selective or discriminatory, and whether it was officially tolerated by the authorities."
It was further argued that the Tribunal did not ignore potential relevance of other issues, including the presence of mechanisms in place in Bangladesh against the obligation of the state to take reasonable measures to protect the lives and safety and citizens, and the issue of uncontrollability and other matters raised by the Applicant.
It was argued by the Respondents, that it was unnecessary for the Tribunal to embark upon further consideration of the issues because it had decided that there was no evidence that AL supporters, such as the Applicant, were being targeted for violence by BNP supporters at the time of the Tribunal's decision. It was further argued that any further failure to analyse the issues was due to the lack of evidence put before it by the Applicant, and the Tribunal in the circumstances was under no obligation to make the Applicant's case for him.
Accordingly, it was argued that the comments of Hely J in Rahman did not present a wrong question and the Tribunal did not err in considering those issues in the manner expressed by Hely J. In the alternative, it was argued that in any event, this Court should not be required to overturn the reasoning of a Superior Court as contended by the Applicant.
In my view, the Respondents submissions are correct. I do not see any error in the way in which the Tribunal has referred to the decision of Hely J, nor do I impute into the decision of Hely J the conclusions sought to be advanced for and on behalf of the Applicant. I accept that in the passage referred to earlier in this judgment, from the decision of Hely J relied upon by the Tribunal, that the Court in that case did not present the wrong question. The decision of Hely J, clearly included the relevant matter of selective or discriminatory violence by non‑state agents. I accept this is implicit by reference to violence being "officially tolerated and uncontrollable by the authorities of Bangladesh".
However, it is not for the Court to now re-open or re-visit the question of persecution now sought to be argued, but rather to determine whether the Tribunal acted according to law in applying the decision of Hely J in Rahman, which I accept, it did apply appropriately. Further,
I reject the interpretation of the decision of Hely J advanced for and on behalf of the Applicant.
In any event, in considering the decision of the Tribunal, it is noted that by the time it referred to the extract from the decision of Hely J, it had already rejected the Applicant's claim. The conclusion that the Applicant would not face a real chance of persecution for a convention reason occurred before it made reference to the additional matter of the decision of Hely J, and indeed appears to have used those remarks simply to analyse further the role of the Applicant and the AL. Therefore, in my view, this ground should fail.
Findings Unsupported by Evidence
It was submitted on behalf of the Applicant that, "According to country information cited by the RRT, the risk of violent attacks by non‑state agents who are followers of the major parties against supporters of opposition parties is a failure of the Bangladeshi politics”. The Applicant noted the reference by the Tribunal to the Country Information. The Applicant specifically submitted the following:-
“ The Tribunal noted a range of country information before concluding that the information before it indicated that political violence is common around the time of the elections, but abates thereafter. There follows a correctly stated sentence regarding violence in relation to the 2001 elections. The statement then that leaders of the BNP and AL vowed to crack down on supporters within their ranks who are prone to use violence is not borne out by the extract on CB 82 which is confined to the parties not giving shelter to ‘terrorist godfathers’ either their own or ones expelled from the other. Finally there is the statement which in the Applicant's submission is wrong and to which objection is taken ... ‘there is no evidence that AL supporters are being targeted by BNP supporters’. To the contrary it was clear from both DFAT sources (at CB 83) that AL supporters were targeted by BNP supporters, although there was ‘no evidence that the current BNP government is specifically targeting AL supporters’. There is in consequence a finding unsupported by evidence which goes directly to the finding that the Applicant did not have a well‑founded fear of persecution on the basis of his membership, support, affiliation or association with the AL. If the Applicant is correct in this submission then there is no independent finding that takes him out of the category of persons who could be harmed by supporters of the BNP in an election context or otherwise if he were to return to Bangladesh.”
The Respondents submitted that this analysis of the Tribunal's conclusion is a "pedantic and pointless complaint insofar as it relies on the BBC report's reference to 'terrorist godfathers' which is a term which was capable, in the context of being paraphrased, as 'supporters within their ranks who are prone to use violence'."
It was argued that in judicial review, the concern is with "practical injustice" and not mere technicalities (see Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Lam (2003) 195 ALR 502).
In my view, the Respondents submissions in relation to the second ground are correct. The analysis advanced for and on behalf of the Applicant constitutes an overzealous approach, which is impermissible in judicial review. It is unduly technical to assess the finding in this manner, given that there was sufficient Country Information which would support the general conclusion in relation to the government specifically targeting AL supporters, that is, the "current" government. I do not see any error arising out of this ground and accept the Respondents submission that the Tribunal's conclusion was open to it on the information then before it, in particular the Country Information.
Conclusion
It follows, therefore that the application should be dismissed with costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of McInnis FM
Deputy Associate: Brooke Evans
Date: 20 December 2005
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