NAQJ v Minister for Immigration
[2004] FMCA 343
•6 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAQJ v MINISTER FOR IMMIGRATION | [2004] FMCA 343 |
| MIGRATION – Application for review of Refugee Review Tribunal decision – whether Tribunal denied applicant procedural fairness – whether Tribunal obliged to raise concerns about adequacy of information provided by an applicant – whether Tribunal considered Convention grounds raised by material before it. |
Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531
Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
Morato v Minister for Immigration Local Government & Ethnic Affairs (1992) 111 ALR 417
Kioa v West (1985) 159 CLR 550
Alphaone Pty Ltd v Commissioner for ACT Revenue (1993) 49 FCR 576
| Applicant: | NAQJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1258 of 2003 |
| Delivered on: | 6 May 2004 |
| Delivered at: | Sydney |
| Hearing date: | 6 May 2004 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
That the applicant pay the respondent's costs fixed in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1258 of 2003
| NAQJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 7 May 2003 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa. The applicant, a national of Bangladesh, most recently arrived in Australia on 5 October 2001. She applied for a protection visa on 14 November 2001. The application was refused on 31 December 2001. On 15 January 2002 the applicant applied to the Refugee Review Tribunal for review of that decision.
The Tribunal found that many of the applicant's claims were vague and general and sometimes sweeping in nature but accepted certain claims about her background. It accepted that she was a Sunni Muslim, that she was involved in women’s issues and held office at a local level in an unpaid part-time position in the Jatiya Party while continuing to work in employment but that she was not a prominent member of the Party or on a hit list because of her role. In light of this and her limited knowledge of the Jatiya Party philosophy and platform it did not accept that the applicant was a Jatiya Party leader.
The Tribunal also accepted that the applicant had married her former husband in 1998, that political differences had emerged in the marriage and that she divorced him (in 2001). It accepted that her former husband was an active BNP member but that he did not hold a formal position in the Party and was the owner of a garment factory and had worked for a BNP Member of Parliament.
The Tribunal did not accept the applicant's claims about the circumstances that had led her to seek protection. Her core claims arose from difficulties with her former husband. She claimed to fear that he would use his position and involvement in the BNP to harm or kill her with impunity. The Tribunal did not accept the claim that her husband had lodged or threatened to lodge criminal charges in relation to false possession of illegal weapons against her. Such claim was unsubstantiated and there was no evidence of such charges other than her assertion. The Tribunal found that this was no more than an unfulfilled threat by the applicant’s husband. Further, based on country information, the Tribunal found that the applicant could rely on the independence of the courts in Bangladesh to provide proper protection for it against any politically motivated or other charges. There was therefore not a real chance that in the course of such a process the applicant would be subjected to serious harm amounting to persecution for a Convention reason. Moreover, there was no evidence that the current BNP Government was pursuing a campaign of persecution against opponents.
The Tribunal did not accept the applicant’s claim that because she was a Jatiya Party leader her husband had threatened to kill her with impunity because of his association with a BNP MP who allegedly had links with terrorists. The Tribunal did not accept that this would occur because it was not satisfied that she was a prominent member of the Jatiya Party.
Nor did the Tribunal accept that the applicant’s husband could act against her with impunity because of his BNP connections. The reasons for decision record that at the hearing the applicant was given the opportunity to elaborate on her husband's connections and particularly his work for the Member of Parliament, and that the applicant had not provided a clarification of the claimed relationship or work of her husband other than that he ran his own garment business. The Tribunal was not able to satisfy itself about the claimed relationship between the husband and the MP or that for this or any other reason the applicant’s husband could act against the applicant with impunity. The Tribunal found that this claim had been embellished for the sake of enhancing the applicant’s claims for a protection visa.
The applicant also claimed generally that her husband was seeking revenge against her family and that her brothers had been threatened and that one was assaulted. No evidence was provided to support these claims. Nor was the Tribunal able to satisfy itself from the material before it that the attack on her brother (if it had occurred) was Convention related. It was not satisfied that the essential and significant reason for any such claimed difficulties was Convention related.
The applicant's adviser had advanced a claim that as a woman in Bangladesh and hence a member of a particular social group, the applicant would be at risk from her former husband. On the evidence presented, the Tribunal was not satisfied that the applicant had been harmed by her husband or that the authorities had failed to protect her in the past, or that she had a well founded fear of such harm. It had regard to the absence of supporting evidence as to past harm or any medical treatment, the fact that the applicant had made several visits to India and a visit to Australia in 2000 and yet returned to Bangladesh. She had not used another Australian visa in 2000. The Tribunal was satisfied that the applicant would have sought protection in the past, overseas or from the authorities, if she had had a well founded fear of serious harm at that time.
The Tribunal considered that she had embellished her claim in order to enhance her protection visa application. This raised further doubts about her credibility. The Tribunal was not satisfied that she had been abused by her husband or that there was any absence of effective state protection because of her political opinion, or because she was a woman, a member of a social group or for any other reason. Nor, given her divorce, did it accept that the applicant’s former husband’s demands on her were still relevant.
The applicant also claimed that two of her relatives were brutally murdered for refusing to divulge her whereabouts and that she herself had been forcibly restrained in October 2001 when she sought to leave the country, kept in solitary confinement, physically assaulted, that she was unable to seek police protection as she was being chased on false allegations and so she came to Australia.
These claims were apparently made on the basis that the actions were taken on the initiative of her former husband. The applicant did not elaborate on the claim that her relatives were murdered notwithstanding that the Tribunal records that it gave her the opportunity at the hearing to make any other claims on issues it had not covered. Given the absence of further information about the claimed murders, the findings about the applicant’s credibility and enhancement of her claims and the significance of such claims, the Tribunal did not accept the claims that relatives had been murdered.
Similarly, no evidence was provided to support the claims of mistreatment of the applicant in October 2001 and she did not elaborate on the claims despite having the opportunity to do so in the hearing. The Tribunal did not accept those claims and found they had been embellished with the objective of enhancing the protection visa application.
The applicant's adviser submitted that the applicant would be regarded as living in sin under Islamic law because she had been living in a de facto relationship while in Australia and that if this relationship was known she could well face problems and serious harm in Bangladesh. However the Tribunal accepted the applicant's claim that she was planning to marry her partner in Australia in the near future and found this would be directly relevant to the Muslim community's perception of their relationship and the way it was seen by the Islamic religion. The Tribunal also found that no Convention ground was claimed or established and was not able to satisfy itself that any harm the applicant may experience on this basis would be serious harm amounting to persecution for a Convention reason if she returned to Bangladesh, especially if she was planning to marry or indeed was married at that time.
The applicant made a more general claim about being a woman and subject to oppression in male dominated Bangladeshi society and being at risk from terrorists. The Tribunal was not satisfied that such general claims were sufficiently detailed for it to be able to satisfy itself that the applicant had a well founded fear of being persecuted on either of those bases.
The applicant initially filed an application in the Federal Court on 20 May 2003. The matter was transferred to this Court. She has since filed an amended application which raises two grounds.
She is unrepresented in the hearing today, but engaged legal representation for the preparation of the amended application and written submissions. She relied on those written submissions. In oral submissions she took issue with the merits of the Tribunal decision, repeated her claims and stated that if she had the opportunity to do so she may be able to provide further information. Insofar as the applicant seeks merits review, merits review is not available in this court.
Two grounds are raised in her amended application. First, it is claimed that the Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction in relation to the way it dealt with the claim based on her de facto relationship in Australia. The applicant complained that the Tribunal dismissed the claim because she was planning to marry and because she had not specifically referred to a Convention ground. The amended application states that ‘It was obvious from the reference to punishment under Islamic law that [the applicant] fear persecution for reasons of religion and that the Tribunal never raised the possible relevance of [her] intention to marry and [she] was denied an opportunity to explain that it was irrelevant in Bangladesh and all that mattered was that [she] had lived together with a man outside of marriage’.
As indicated, the Tribunal accepted the applicant's claim that she was planning to marry her partner in Australia. The Tribunal did not simply reject her claim on the basis of this proposed marriage. It found that the marriage was relevant to Muslim perceptions of the relationship and the way it was seen by Islamic religion. This is also apparent from the subsequent finding that the Tribunal was not able to satisfy itself that any harm the applicant may experience would be serious harm amounting to persecution for a Convention reason. It is the case that the Tribunal stated specifically that no Convention ground was claimed or established. The applicant's written submissions state, quite correctly, that it is not necessary in all cases for an applicant to spell out the particular Convention ground relied upon provided it is raised by the material or evidence before the Tribunal which it accepts or does not reject. (Singh v MIMA (2001) 183 ALR 531 at 542 per Merkel J). However what the Tribunal stated was not merely that no Convention ground was claimed but also that no Convention ground was established. The applicant suggested that the material before the Tribunal and the manner in which her claim was put indicated that she relied on Convention grounds of religion or membership of a particular social group. She claimed that it was obvious from the material that she feared persecution for reasons of religion. In the written submissions she also claimed that a claim on the basis of membership of a particular social group, being women in Bangladesh who had lived or are living in de facto relationships, arose on the material. However, neither such ground emerges from the circumstances and material placed before the Tribunal in the manner contended for by the applicant. The Tribunal was entitled to take the view that no Convention basis for the harm the applicant she said that she faced had been made out and that any harm she may experience given her proposed marriage would not be serious harm amounting to persecution.
The claim was not made on the basis of a fear of harm because of the applicant’s religious beliefs or practices but rather because of her actions, which others would think were wrong or inappropriate because of their religious beliefs. It was not suggested that this was a case of a clash of religious doctrines or of persons of one religion seeking to persecute those of another. The applicant’s claim was that she would be subject to harm because of something she had done in the past. Similarly, in relation to the claim of fear of persecution by reason of membership of a particular social group raised in the written submissions, as the respondent submitted, the applicant's fear flowed not from what she was but from what she had done. (See Applicant A v MIEA (1997) 190 CLR 225, at 242, 243 per Dawson J in which His Honour referred approvingly to what Black CJ had said in Morato v MILGEA (1992) 111 ALR 417, to the effect that the ground of membership of a particular social group requires that persecution be on account of “what a person is - a member of a particular social group - rather than upon what a person has done or does.” As both Dawson J and Black CJ acknowledged, this distinction cannot be taken too far as there could well be cases where what someone had done became part of the definition of what or who they are. However it indicates a distinction in general terms between laws or practices which single out members of a social group and generally applicable laws or practices that apply to persons who engage in particular behaviour or place themselves in a particular situation. Furthermore, in this case the applicant had articulated a reason why Islamic people in Bangladesh may disapprove of her but there is no material to which the court's attention has been drawn put before the Tribunal to give it reason to think that the State would be complicit in harming the applicant or that it would be or unable to prevent harm. The Tribunal found that it was not satisfied that any harm the applicant may experience would be serious harm amounting to persecution.
The Tribunal did not, as was submitted in the written submissions, overlook the aspect of the applicant's claims that, even if she married, the risk remained that she would be persecuted because prior to marriage she had lived in a sinful relationship. The Tribunal's consideration of the proposed marriage and the perceptions of the Muslim community make it clear that it had regard to and understood this aspect of the applicant's claim. No error is established in the Tribunal consideration of this claim.
The second ground relates to the manner in which the Tribunal dealt with the applicant's claims about the deaths of her relatives and her alleged kidnapping. The applicant complained that while the Tribunal dismissed these claims primarily because she had not elaborated on them or provided supporting evidence it did not raise its concerns with her as to the adequacy of the information she had provided. She claimed if it had done so, she would have provided more information and details of the incident. The failure of the Tribunal to indicate that it saw these issues as critical or to raise concerns was said to constitute a denial of procedural fairness and hence a jurisdictional error.
However the Tribunal is not under an obligation to bring to the attention of the applicant its thought processes. It is obliged to raise with the applicant material from another source thought to be adverse before it and of relevance, or any issue that arises that the applicant has not addressed and that would not be obvious. (See Mason J in Kioa v West (1985) 159 CLR 550 at 587). An applicant is entitled to support an application by such information as she or he thinks appropriate and cannot complain if the authorities do not accept what is put forward without further notice to him or, in this case, her. (See Alphaone Pty Ltd v Commissioner for ACT Revenue (1993) 49 FCR 576 at 591 to the same effect).
The duty asserted by the applicant would be a duty for the Tribunal to give specific feedback as to how the Tribunal was receiving what the applicant said in relation to particular issues and to invite her to say more. The shortcomings in the information were shortcomings in the information provided by the applicant. There was no reliance by the Tribunal on external sources in relation to its findings on these claims such as would have necessitated notification to the applicant of such material. Nor is this a case where an issue arose that would not be obvious in the circumstances of the claims made or where the adverse conclusions were not an obvious and natural evaluation of the material supplied by the applicant. Moreover, as the Tribunal states in its reason for decision (and there is no other material before the court as to the conduct of the Tribunal hearing), the Tribunal did in fact give the applicant the opportunity at the hearing to make any other claims on issues it had not covered. In those circumstances it has not been established that there was any denial of procedural fairness to the applicant. As no jurisdictional error has been established the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. The respondent seeks that she meet the costs of these proceedings and indicates that costs somewhat higher than normal were incurred because of some additional work necessitated by the absence of the applicant at an initial directions hearing. The applicant seeks that costs be waived on the basis of financial impecuniosity. She told the court that her house had burned down twice in the last year, that she was still paying her debt to the Refugee Review Tribunal and was not in employment.
The impecuniosity of the applicant, however unfortunate though her circumstances may have been, is not a reason for not ordering that the unsuccessful applicant meet the costs of the respondent. It is a matter that may be taken into account by the Minister in relation to whether and how it is sought to recover such costs.
Having regard to the nature of this and other similar cases I consider that an appropriate amount of costs is the sum of $4,500 and that costs should be fixed in this amount.
I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 4 June 2004
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