S1292 of 2003 v Minister for Immigration
[2005] FMCA 241
•14 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1292 OF 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 241 |
| MIGRATION – Persecution – modified behaviour to avoid persecution – violence at rallies. |
| Migration Act 1958, ss.474, 477(2) |
| NAHW v MIMIA [2004] FCA 399 Farajvand v MIMIA [2001] FCA 795 Appellant S395/2002 v MIMIA [2003] HCA 71 SZAFD v MIMIA [2003] FCA 1578 VFAC v MIMIA [2004] FCA 367 SZACV v MIMIA [2004] FCA 469 Rodrigo v MIMA [2001] FCA 1027 MIMIA v Respondents S152/2003 [2004] HCA 18 |
| Applicant: | APPLICANT S1292 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG1176 of 2004 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 9 February 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 14 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Gibson |
| Solicitors for the Applicant: | Lesley Simons & Associates |
| Counsel for the Respondent: | Ms. Macdonnell |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application for review filed on 19 March 2004 and amended on
23 August 2004 is dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $7,900.00.
FEDERAL MAGISTRATES |
MLG1176 of 2004
| APPLICANT S1292 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding comes before the Court on an application filed on
19 March 2004, and later amended on 23 August 2004, in which the Applicant seeks to review the decision of the Refugee Review Tribunal (the Tribunal) made on 21 February 2001. The Tribunal’s decision affirmed an earlier decision of the Respondent’s delegate to refuse to grant the Applicant a protection visa.
At the hearing the Applicant abandoned the first two of his stated grounds for review and proceeded on the third. That ground provided:
“iii)The Tribunal asked the wrong question and identified the wrong issue and misunderstood and/or misconstrued and/or failed to apply the correct test for establishing whether the applicant had a well-founded fear of persecution if he were to return to Bangladesh by reasoning that he could avoid persecutory consequences by limiting the extent of his participation and involvement in political activities on behalf of the Jatiya Party. It ignored the principle that persecution does not cease to be persecution because those persecuted can eliminate the harm by taking avoiding action and thereby failed to ask itself the right question for the purpose of the Convention test.”
Background
The Applicant is a 29 year old citizen of Bangladesh who arrived in Australia on a six month visitor’s visa on 28 September 1997 and lodged an application for a protection visa on 16 March 1999.
On 28 April 1998 a delegate of the Respondent refused to grant a protection visa. In his application for the protection visa the Applicant made the following claims:
(i)He joined the Jatio Party in 1989 as a student at age 14 or 15. He was opposed to the unlawful programs and activities to oust President Ershad and “they” tried to kill him on several occasions.
(ii)In 1991 when he completed his secondary education “they attempted a number of times to kill [him]” and he was in hiding to save his life. Through his “leadership a number of protest meetings, processions and other programs were observed to release President Ershad from jail.”
(iii)“On 15 October 1992 at 5.00 pm a group of Awami goons attacked [him] near the field of Abahani Club” with hockey sticks and he was admitted to a private clinic for two weeks.
(iv)On 27 March 1993, in a rally to release President Ershad from jail, a fight broke out between a group from the student wing of the BNP and “they filed an armed case against [his] political friends and [him].”
(v)A large number of people joined the party due to his work. He was also elected joint secretary of Dhanmondi P.S. Committee later in 1993.
(vi)He was a leading activist of the party and was elected as an executive member of Dhaka district Jatio Party in 1994.
(vii)On 23 July 1994 at 2.00 pm he was encircled by a group of BNP thugs at Kala Bagan and seriously wounded. He was rescued by the police, but the police did not arrest the BNP thugs.
(viii)On 12 June 1996, the Bangladesh Awami League formed government with the help of his party. He had worked for “our candidate” during the election. However, the Awami candidate did not tolerate his rise in society and sent a group of Awami thugs to kill him. He was shot at on 28 July 1996 at 12.00 am.
(ix)On 15 August 1996 at 5.00 pm, he and a friend were attacked, while walking, by about 20 Awami thugs and left for dead on the roadside but pedestrians sent them to the local hospital from which they were released “after a few days”. He reported the attack to the police who did not take any action. “There was a serious conspiracy against him but [he] did not know that.”
(x)On 1 May 1997 at 11.00 pm a group of Awami thugs attacked him when he was returning home from a function and he lost consciousness. A few of his friends sent him to a private clinic.
(xi)After the incident in May 1997 he was advised by his relatives, parents and political friends to leave the country and he obtained a visa to come to Australia.
(xii)A number of false cases have been filed against him and he will be prosecuted if he returns. His life is not safe in Bangladesh. “If [he] has time, [he] will able [sic] to provide the documents in relation to [his] genuine Claim.”
The Tribunal advised the Applicant that it was not prepared to make a favourable decision on all the material relating to his application and invited the Applicant to give oral evidence at the hearing. Whilst the Applicant accepted the invitation he, however, did not attend.
The Tribunal received a written submission from the Applicant’s agent on the day of the hearing which submitted the Applicant “should be considered a high level leader” and that “his political position made him a target”; “as such he was beaten for a number of times” and that “moreover a number of cases were filed against him to paralysed his political status”. It was submitted that there was independent evidence “of extreme injustice and torture both mental and physical against the leaders and activists of the opposition.”
The Tribunal’s decision
On 21 February 2001 the Tribunal affirmed the delegate’s decision not to grant a protection visa to the Applicant. The Applicant failed because the Tribunal concluded that he “did not present a truthful account of his circumstances in Bangladesh.”
The Tribunal reasoned as follows:
(i)It accepted that the Applicant had been involved with the Jatio Party and that he was hurt in political violence.
(ii)It did not accept the Applicant’s claim that he is or was a prominent political figure, either in his own region or elsewhere in Bangladesh.
(iii)It did not accept the Applicant’s claim that he “has been of particular interest and concern to the Awami League or other political parties in Bangladesh.”
(iv)It was “not satisfied that either the applicant’s individual activities or his membership of the Jatio Party will be of particular interest to the Awami League or other political parties in Bangladesh.” Since 1996 the Jatio Party has been an insignificant party which has been fragmented by factional infighting and has little influence in government or any other political activity in Bangladesh.
(v)The Applicant “was a member of a minor party and his involvement in that party would not give him the profile of prominent political activist in Bangladesh; his claim lacks credulity and is not accepted.”
(vi)As to the Applicant’s claimed fear of persecution by the government due to his political opinion, it was satisfied that despite the volatile nature of political life in Bangladesh “members of opposition parties generally do not risk harm for holding or expressing anti-government views”. It acknowledged that prominent political figures have been harmed by political opponents but it was not satisfied that the Applicant was such a prominent figure or that he was of particular interest or concern to the government because of his activities with the Jatio Party.
(vii)As to the Applicant’s claim that political violence was widespread in Bangladesh and he would be targeted by political opponents due to his political opinion:
(a)it accepted Department of Foreign Affairs and Trade advice that citizens of Bangladesh can peacefully express their political views against the government without attracting the adverse attention of the authorities or government; and
(b)political rallies can be violent and there are risks associated with attending such rallies but citizens of Bangladesh have alternative, safer options in expressing their political opinion; that only a minority of political activist are implicated in political violence; and that these options are available to the Applicant if he returned to Bangladesh in the foreseeable future and wished to participate in political activity.
(viii)As to the Applicant’s claims of having been targeted by political opponents, of false cases being filed against him and of having reported an attack to the police who took no action, the claims were “presented poorly” despite assistance of a migration agent and without “meaningful details.” The agent’s submission was “vague and broad.” By his non–attendance at the hearing the Applicant did not give the Tribunal the opportunity to explore aspects of his claims, with the Tribunal concluding that it was not satisfied that the Applicant had a well-founded fear of persecution.
The Tribunal affirmed the delegate’s decision because it was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Status of Refugees Convention as amended by the Refugees Protocol.
Contentions
The Applicant contends the Tribunal asked itself the wrong question when it reasoned that the Applicant could avoid the prospect of violence committed against him by not attending political rallies and demonstrations. In essence, the Applicant contends that he should not have to modify his political behaviour should he return to Bangladesh to avoid such violence. The expectation of the Tribunal that he modify his behaviour to avoid harm, it was contended, was the jurisdictional error identified in NAHW v MIMIA [2004] FCA 399 (NAHW).
To suggest he could avoid harm by such modified behaviour was a failure on the part of the Tribunal to assess his position on the hypothesis of him conducting himself as he should be “entitled” or “free” to do. In support of that, I was referred to the accepted evidence of violence perpetrated against the Applicant. Should he engage in political activity as before, it was contended, he had a well–founded fear that he would suffer violence based upon his past experience – that he would suffer persecution.
Of significance is the Applicant’s contention that the Tribunal found, which finding the Applicant asserts was determinative of the Applicant not having a well-founded fear of persecution, that he could express his political opinion in ways other than participating in rallies and demonstrations and thereby, through his modified behaviour, not attract the attention of government. The assertion that this was a determinative finding does form the premise upon which the Applicant bases his substantive contention. The determinative aspect, and the exact nature of this finding as understood by the Applicant are disputed by the Respondent in her contentions (see below).
In NAHW Allsop J held that the Tribunal had fallen into error by expecting some form of modification to the applicant husband’s future conduct to occur when expressing political his opinion. This case concerned attendance at illegal political rallies and the prospect of the husband drawing adverse attention to himself.
The Applicant also cited an earlier decision of Allsop J in Farajvand v MIMIA [2001] FCA 795 where His Honour examined the nature of modified behaviour and its relevance to the question of what may constitute persecutory behaviour in a Convention context. In that case His Honour stated:
“29In my view, if the above be a correct understanding of the reasons of the Tribunal, it has in effect made a finding that the applicant does not have a well-founded fear of adverse consequences because he can avoid, and he recognises that he can avoid, those adverse consequences, which would flow from apostasy and public manifestation of his faith, by, in effect, keeping a low profile. That is to say, in my view, no more than that he can avoid persecution by restricting the disclosure of his religion and by restricting the conduct of his religion in anticipation or, if one likes, in fear of the consequences if he did otherwise. This, in my view, recognises the likely existence of persecution unless his religion is practised in a limited way. Or, put it more accurately, for the purposes of the Convention, that he perceives and has a well-founded appreciation that a limitation on his activities is necessary to avoid consequences from State authorities; and if he does so, which the Tribunal found he will, he will then not face harm.”
In the same way, it was contended, the expectation of the Tribunal was that serious harm could be avoided should the Applicant not partake in rallies and demonstrations. Such an expectation on the part of the Tribunal, it was contended, ignored the fact that should the Applicant partake fully in his activities, which he is entitled to do, and should be free to do, he would suffer the likelihood of violence at rallies and thereby, persecution. In that way the Tribunal failed to ask the right question and made the error characterised by Gummow and Haynes JJ in Appellant S395/2002 v MIMIA [2003] HCA 71 (S395/2002); namely, the failure to ask, “could the applicant live in that country without attracting adverse consequences. ”
In response, the Respondent contends that the finding that the Applicant could express his political views in alternative ways other than participating in rallies and demonstrations was not determinate of the Tribunal’s substantive finding that the Applicant did not have a well-founded fear of persecution from authorities or government.
The Tribunal found that “citizens of Bangladesh can peacefully express their political views against the government without attracting the adverse attention of the authorities/government.” In my view, this finding was open to the Tribunal on the country information before it.
The Respondent contends, with which contention I agree, that it was the above finding and the Tribunal’s earlier finding that it was not satisfied that “either the applicant’s individual activities, or his membership of the Jatio Party, will be of particular interest to the Awami League or other political parties in Bangladesh” which were determinative of the Applicant’s application for a protection visa.
The Respondent asserts the Tribunal did not make an error of the kind identified in S395/2002. That case involved two applicants who claimed to fear persecution in Bangladesh because of their homosexuality which was illegal in that country. The applicants contended that the Tribunal had erred by requiring them to live discreetly to avoid the harm which they claimed to fear. Although the Tribunal was not found to have required the applicants to live discreetly to avoid harm, by a majority, the Court found that the Tribunal had made a jurisdictional error because it did not ask why the applicant would live discreetly. In that case, McHugh and Kirby JJ said at [35]:
“The reasons of the Tribunal show … that it did not consider whether the choice of the appellants to live discreetly was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly … Nor did the Tribunal’s reasons discuss whether the infliction of harm can constitute persecution where an applicant must act discreetly to avoid that harm. Nor did they discuss whether, if the appellants wished to display, or inadvertently disclosed, their sexuality or relationship to other people, they were at risk of suffering serious harm constituting persecution…”
Further, in S395/2002, and in a similar vein, Gummow and Hayne JJ said at [88]:
“…The Tribunal did not ask why the appellant would live “discreetly”. It did not ask whether the applicants would live “discreetly” because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted fro addressing the fundamental questions of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention …”
In contradistinction to S395/2002, the Respondent contends, the present case, did not involve any past modification of conduct by the Applicant, nor did the Tribunal find that the Applicant would face harm in the future if his anti-government views were known. To the contrary, the Tribunal found that the Applicant could peacefully express his anti-government views without attracting adverse attention of authorities/government. In so doing, the Tribunal was answering “the material and fundamental question” as to the treatment of persons with anti-government views in Bangladesh (see SZAFD v MIMIA [2003] FCA 1578 (Wilcox J) at [6]). The Tribunal did not require the Applicant to conceal his political opinion, as the Applicant effectively asserts by analogy in his contentions when referring to the cases of VFAC v MIMIA [2004] FCA 367 and SZACV v MIMIA [2004] FCA 469. I accept the Respondent’s contention in these regards as reflecting the correct understanding of the Tribunal’s decision, its reasoning and the correct application of the law.
The Applicant’s contention that the Tribunal required the Applicant to modify his behaviour by not attending rallies and demonstrations in order to avoid attracting the adverse attention of authorities/government is, in my view, not supported by the Tribunal’s reasoning and findings. First, the Tribunal did not make a finding that attendance at rallies and demonstrations attracted the adverse attention of authorities/government and that non-attendance would prevent the attraction of such attention.
I accept the Respondent’s contention that in referring to the question of violence at political rallies in Bangladesh and the avoidance of the same by the Applicant, the Tribunal was merely acknowledging the fact of such violence and the means by which the Applicant could avoid it. The Tribunal examined country information on this issue and acknowledged the existence of violence in Bangladesh politics. The Tribunal did not find that the political violence at rallies was caused by the authorities. It noted the Applicant’s claim to have been injured in a rally, but he “did not indicate whether it was his side, the other side, or both sides who used bombs and guns during the rally.”
I also accept the Respondent’s contention that this case is not analogous to NAHW. In NAHW, the Tribunal found to have expected an applicant to modify his behaviour. The background to that case is the applicant, in order not to attract the attention of the SBU (formerly the KGB) again by attending illegal rallies, had to modify his behaviour. In this case, unlike NAHW, there was no issue of the Applicant avoiding the adverse attention of authorities by not attending rallies or demonstrations. The expression of political opinion at rallies, the Tribunal noted, was attended by a risk of violence. The Applicant expressed his fear of such violence and the Tribunal, in my view, merely noted that he could avoid that risk by not attending rallies, but otherwise would still be able to express his anti-government views without adverse consequences.
The Applicant emphasised that attendance at such rallies and demonstrations in the past had resulted in harm being caused to him and that he would suffer such harm in the future should he attend rallies and demonstrations as he should be entitled to do if he wished to give full expression to his political opinion. As Kenny J in Rodrigo v MIMA [2001] FCA 1027 said at [18]:
“…The fact that political parties engage in violence from time to time does not mean that there is persecution within the meaning of the Convention. This is “because the violence [may lack] the selective or discriminatory quality which is inherent in the notion of persecution, and because it [may lack] the requisite “official” quality in the sense that it is official, or officially tolerated, or uncontrollable by the authorities”: see Rahman v Minister for Immigration and Multicultural Affairs [1999] FCA 73 at [10] per Hely J and Haque v Minister for Immigration and Multicultural Affairs [1999] FCA 1582 at [7]-[9] also per Hely J.”
His Honour McHugh J in MIMIA v Respondents S152/2003 [2004] HCA 18 at [33] observed:
“…Every year motor car accidents cause the death of or serious injury to thousands of Australians. But that does not mean that every driver who fears death or serious injury from a motor vehicle accident has a well-founded fear that he or she will suffer death or serious injury in that way …”
In my view, the violence complained of by the Applicant at rallies and demonstrations could not, on the evidence before the Tribunal, be categorised as having the necessary “selective or discriminatory quality which is inherent in the notion of persecution”. It lacked the “official quality” referred to by Kenny J. Such violence at rallies and demonstrations reflect the nature of political activity in Bangladesh where all sides are likely to be both perpetrators and victims. In order to avoid the random nature of such violence it would be wise to avoid such rallies whether you are aligned with the government or opposition parties. In the context of the history of violence at rallies in Bangladesh, the Tribunal’s reference to avoiding harm by avoiding rallies can be seen as no more than salutary advice, but not directive of conduct to avoid persecution.
Conclusion
For the reasons outlined, I am of the view the Tribunal did not make an error in the nature of that alleged in the Applicant’s stated ground for review. I am satisfied the Tribunal did not ask itself the wrong question, nor did it identify the wrong issue. It follows also that I find that the Tribunal did not ignore the principle that persecution does not cease to be persecution because the persecuted can modify behaviour and thereby avoid persecution.
In my view, the Tribunal asked itself the right question, applied the relevant law and made findings that were open to it on the evidence. The Tribunal has not made a jurisdictional error.
The Tribunal’s decision is a privitative clause decision under s.474 of the Migration Act 1958 (the Act) and is afforded protection under that section. In addition, the application is clearly out of time under
s.477(2) of the Act.
The application for review should be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 14 July 2005
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