NAOI v Minister for Immigration - [2003] FMCA 582

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOI v MINISTER FOR IMMIGRATION

[2003] FMCA 582

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and religious persecution in Bangladesh – applicant forced to curtail work as an HIV/AIDS counsellor – whether RRT erred in not considering whether the applicant was a member of a particular social group or whether being forced to cease HIV/AIDS work constituted persecution – no reviewable error found.

Migration Act 1958 (Cth), s.36

Appellant S395 of 2002 v Minister for Immigration [2003] HCA 71
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 76 ALJR 966

Applicant:

NAOI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1371 of 2003

Delivered on:

10 December 2003

Delivered at:

Sydney

Hearing date:

10 December 2003

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
The applicant is to pay the setting down fee of $327 or obtain a waiver within 14 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1371 of 2003

NAOI

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 3 March 2003 and handed down on 25 March 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Bangladesh. He claimed a well-founded fear of persecution by reason of his Hindu religion, his political activity in Bangladesh, his work with a Hindu organisation and his work with a non-government AIDS/HIV organisation. The background facts relating to the application for a protection visa and the RRT’s decision on it are set out accurately in paragraphs 3 through to 6 of written submissions prepared by Mr Smith, for the Minister. I adopt those paragraphs for the purposes of this judgment:
The applicant is a citizen of Bangladesh who arrived in Australia on 5 October 2001 and lodged an application for a protection visa on 2 November 2001. The bases for his application were claims that he feared persecution in Bangladesh by reason of his political opinion, namely, support for the Awami League, his involvement in a non-government AIDS/HIV organisation, his religion, namely Hindu and (rather belatedly) membership of the Bangladesh Hindu Buddha Christian Okkya Parisad.
The applicant, upon application to the RRT for review of the delegate’s decision, submitted a large amount of material and made, through his advisers, a number of written submissions as well as attending a hearing on 17 February 2003 to give oral evidence.
The RRT accepted most of the applicant’s claims but was not satisfied that he met the criteria for the grant of the protection visa. The material findings made by the RRT were:
a) it is reasonable in the circumstances for the applicant to relocate to Dhaka (from Comilla) due to his high level of education and his occupational skills, and if he were to do so he would not be seriously harmed for his political opinion (court book, pages 839-840);
b) the applicant is a Hindu but, again it would be reasonable in the circumstances for him to relocate to Dhaka, a large urban conglomerate, where, because he is not a “prominent” Hindu he would not be attacked by any fundamentalist Muslims (court book, page 840);
c) the RRT accepted that the applicant had been an AIDS/HIV counsellor and may have come to the attention of Muslim fundamentalists in his outreach work but found that he had decided it was not safe to continue with the outreach work and had so ceased such activity (court book, page 840.3);
d) the applicant was not the subject of any false charges in Bangladesh (court book, page 841); and
e) there is no real chance that the applicant would be persecuted now or in the foreseeable future if he returned to Bangladesh.
On the basis of these findings the RRT concluded that the applicant did not have a well-founded fear of persecution and so did not meet the criterion in s.36(2) of the Migration Act 1958 (Cth) (“the Migration Act”).
The applicant relies today on his original application for review filed on 17 April 2003 as well as his amended application filed on 9 July 2003. Notwithstanding that the amended application appears to supersede the original application, the applicant wished me to take both into account. The first 11 grounds of review set out in the two applications are the same. The amended application adds a twelfth ground of procedural fairness. Mr Smith submits that the 12 grounds can be reduced to three. I accept that submission. As refined, the three grounds are:
f)the RRT erred by consciously choosing to ignore the material in the applicant's claims and so made a decision not based on all of the material before it;
g)the RRT denied the applicant procedural fairness by not giving him the opportunity to address adverse country information; and
h)the decision was not a bona fide attempt to exercise the power of the RRT.
The applicant also filed written submissions on 9 July 2003 and 8 December 2003. In those submissions, he seeks to elaborate upon the grounds set out in his application. However, apart from repeating the grounds in the original written submissions filed on 9 July 2003, those submissions do not advance the applicant's case. The submissions filed on 8 December 2003 do not, in my view, extend much beyond a contest over the merits of the RRT decision. Nevertheless, at least three legal issues have been raised by the applicant which are those identified by Mr Smith and repeated by me. Lest there be any doubt, I find that to the extent that the grounds of review set out in the applications cannot be accommodated under the three grounds identified by Mr Smith and adopted by me, there is no substance to them.
Mr Smith deals with the grounds as articulated by him in paragraphs 7 to 9 of his written submissions. I agree with and adopt those submissions for the purposes of this judgment:
The RRT had before it a large amount of material and a number of written claims made by the applicant’s adviser in addition to the oral evidence given by the applicant. The RRT in its statement of reasons referred to these submissions and to that evidence at some length (court book, pages 820-839). There is nothing in the material before the Court to suggest that the RRT did not have regard to all of the material put forward by the applicant. Indeed, the RRT accepted the purport of the bulk of the material, namely that there had been attacks on Hindus by fundamentalist Muslims. The mere fact that each of the documents was not closely analysed and referred to by the RRT in its statement of reasons is indicative neither of a failure by it to have regard to them nor of any jurisdictional error. Its obligation to refer to evidence in its statement of reasons is limited to the evidence upon which it bases its material findings of fact: see s.430(1)(d). The first ground ought to be rejected.
There is simply no evidence to support the second ground. In so far as the additional ground set out in the amended application relates to a failure by the RRT to make the applicant aware of the official cables and reports referred to in the delegate’s decision, the ground appears to misconceive the extent of the RRT’s obligation to afford procedural fairness. There is no allegation here that the applicant was misled into believing that the RRT had considered the material referred to in the delegate’s decision whereas it had not and the material was favourable See Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 76 ALJR 966. There is no obligation on the RRT to point out material which is adverse to the applicant unless it is in fact relevant to the RRT’s decision. Further, by letter dated 10 April 2002 the RRT wrote to the applicant telling him that it had asked the Department to send a copy of its documents about his case to the RRT (court book, page 160), and subsequently, by letter dated 23 December 2002 (court book, page 167), wrote to tell the applicant that it had considered the material before it in relation to the application but was unable to make a decision in his favour. There can be no doubt that the applicant received the decision of the delegate because it was referred to in his application for review of that decision by the RRT (court book, page 158). In these circumstances, the applicant had every opportunity to obtain that material and to address it in submissions either oral or written or by the presentation of further material. There was no unfairness in the procedure adopted by the RRT in the conduct of its review and this ground ought to be rejected.
In this case the RRT conducted a hearing, analysed the material and claims before it including, oral evidence and numerous documents, and came to a decision which was open to it on that material. There is no basis for the allegation that the RRT failed to act honestly in the exercise of its powers or that in any other way there was a lack of good faith. The third ground ought to be rejected.
The applicant was unable to advance his arguments further when I gave him the opportunity to do so at the hearing this afternoon. He is plainly dissatisfied with the decision of the RRT. He thinks that the RRT reached a wrong decision. He may, of course, be right. However, as I explained to him on several occasions, I cannot review the decision of the RRT on its merits. That power is vested in the Minister. If the applicant wishes to pursue his argument over the merits of the RRT decision, he should take his complaints to the Minister. That is beyond the scope of these proceedings.
There is nothing in the application or amended application or in the applicant's written or oral submissions that satisfies me that the RRT committed a jurisdictional error. Nevertheless, noting that the applicant is a self represent litigant, I have not limited myself to the grounds and arguments advanced by the applicant. I have considered whether there is anything I could identify in the decision and reasons of the RRT that might indicate jurisdictional error. The only issue that occurred to me was an issue arising out of the decision of the High Court in Appellant S395 of 2002 v Minister for Immigration [2003] HCA 71 decided on 9 December 2003. In that case, a majority of the High Court found that the RRT erred in law in dealing with a claim by a homosexual man from Bangladesh.
The RRT had found that the applicant could avoid persecution by living discreetly and so apparently thereby avoiding adverse attention. A majority of the High Court decided relevantly that the RRT erred by failing to consider whether the need to act discreetly to avoid the threat of serious harm constituted persecution. The majority also found that the RRT erred by failing to consider whether the appellants might suffer serious harm if members of the Bangladesh community discovered that they were homosexuals.
The applicant in this case is not a homosexual. He did, however, give evidence to the RRT directly and through his migration agent that he had been an AIDS/HIV worker. The RRT accepted that he had been an AIDS/HIV worker. At page 24 of the decision the presiding member said:
The Tribunal also accepts that as an AIDS/HIV counsellor he may well have come to the attention of Muslim fundamentalists in his outreach work. However, the Tribunal notes that it is his own evidence that he decided that it was not safe to continue with such outreach work and ceased such activities.
The question is whether the RRT erred in that finding. The RRT assumed that the applicant could avoid future harm on the basis that he had ceased his activities which gave rise to the risk of harm. The RRT dealt with the matter in the context of consideration of the risk of harm faced by the applicant as a Hindu.
The applicant had given evidence that Muslim fundamentalists had attacked him in the course of his work. There appears to have been no consideration by the RRT of whether the applicant faced a risk of harm by reason of membership of a particular social group. Neither does there appear to have been any consideration by the RRT of whether the cessation of his outreach work by reason of a risk of harm itself amounted to persecution. Mr Smith dealt with this issue in his oral submissions. Mr Smith submitted, and I accept, that a Convention based well founded fear of persecution is not established simply by reason of some association with a particular social group of which the applicant is not a member.
Homosexuals in Bangladesh constitute a particular social group and the applicant would have had some association with homosexuals in the course of his outreach work. HIV/AIDS victims or those at risk could hypothetically also constitute a particular social group in Bangladesh. However, the applicant was not a member of either group. He merely associated with them in the course of his work. It was not part of the applicant's claims for a protection visa that HIV/AIDS workers themselves constituted a particular social group.
In the circumstances, I find that there was no jurisdictional error committed by the RRT in failing to consider the issue of the existence of a particular social group in relation to the harm said to have been inflicted upon the applicant in the course of his work. To the extent that the claim related to the claim of persecution based on religion, I also accept Mr Smith's submission that the claim was adequately considered by the RRT. The applicant did not submit that he was compelled to cease all HIV/AIDS work. He did say that he was compelled by reason of his fear to cease his counselling work in his local area. The presiding member dealt with the applicant's statement on page 15 of the RRT reasons. The presiding member said:
The applicant said that he had worked as an AIDS counsellor. He was asked about his statement that he had been attacked because of his work. The applicant was most evasive in providing details of the “numerous times” he claimed he had been physically attacked and concluded, when pressed, that “Mullahs” have attacked their office and when he was out talking to gays and other at-risk groups he had been chased and so he stopped going to such places.
In the circumstances, it would be drawing a rather long bow to assert that the cessation of counselling work under threat of being physically attacked in his local area constituted persecution. The applicant might have been able to continue AIDS work in a different capacity. He might have been able to continue AIDS work in a different locality.
I find no error in this case in the failure on the part of the RRT to determine whether the applicant being forced to cease his counselling work constituted persecution. I find that no jurisdictional error was committed by the RRT.
I will dismiss the application.
On the question of costs, Mr Smith has sought an order for costs fixed in the sum of $5,500. That sum is a little higher than is commonly awarded by me in migration proceedings. However, in this case it was necessary for the respondent to prepare a three volume green court book and also to deal with two applications and two sets of written submissions from the applicant. In addition, I am told by Mr Smith, and I accept, that his instructing solicitors also listened to the tape recording of the RRT hearing in view of the applicant's allegation of procedural unfairness. In the circumstances, a costs order somewhat higher than ordinarily awarded is called for. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, fixed in the sum of $5,000. I will also order that the applicant pay the setting down fee of $327 payable for the hearing of this matter within 14 days of today's date or alternatively obtain a waiver.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 23 December 2003