Saha v Minister for Immigration and Multicultural Affairs

[2001] FCA 772

FEDERAL COURT OF AUSTRALIA
Saha v Minister for Immigration & Multicultural Affairs [2001] FCA 772

MIGRATION – application for protection visa – nature of obligation of Tribunal to record reasons for decision – material findings of fact.

Migration Act 1958 (Cth), ss 5, 14, 65, 189, 430, 476

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 applied
Abebe v Commonwealth (1999) 197 CLR 510 considered
Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 referred to
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 referred to

SAMIR SAHA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 120 of 2000

LEE J
22 JUNE 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 120 OF 2000

BETWEEN:	SAMIR SAHA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	LEE J
DATE OF ORDER:	22 JUNE 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 120 OF 2000

BETWEEN:	SAMIR SAHA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	LEE J
DATE:	22 JUNE 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application under s 476 of the Migration Act 1958 (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 June 2000 which “affirmed” a decision of a delegate of the respondent (“the Minister”) that the applicant not be granted a “protection visa”.

2. The applicant is a 26 year old citizen of Bangladesh. He arrived in Australia on 25 September 1999 as an “unlawful non-citizen” as defined in s 14 of the Act. Pursuant to s 189 of the Act the applicant was “detained” upon arrival and thereafter held in a “detention centre”. On 17 December 1999 the applicant applied for a protection visa which was refused by a delegate of the Minister on the 17 April 2000. The applicant applied to the Tribunal for review of the delegate’s decision on 20 April 2000.

3. Under s 65 of the Act if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, the Minister is to grant the visa, but if the Minister is not so satisfied, the grant of the visa is to be refused.

4. Section 36(2) of the Act provides that:

   “(2)     A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

5. In s 5 of the Act, “Refugees Convention” and “Refugees Protocol” (together referred to hereafter as “the Convention”) are defined respectively as “the Convention relating to the Status of Refugees done at Geneva on 28 July 1951” and “the Protocol relating to the Status of Refugees done at New York on 31 January 1967). The term “protection obligations” is not defined in the Convention or the Act.

6. The Convention is a treaty pursuant to which the “Contracting States” agree to apply the provisions of the Convention to “refugees”.  Article 1(A) of the Convention provides:

   “For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who:

   …

   (2)…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;…”

7. Exceptions to, or cessations of, the operation of the foregoing are set out in, inter alia, Article 1(C), 1(D), 1(E) and 1(F).

8. As a Contracting State, Australia has undertaken the obligations imposed on Contracting States by the Convention. Numerous obligations in respect of refugees are set out in the Convention, including undertakings by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State. The foregoing may come within “protection obligations” as that term is used in subs 36(2) of the Act but the specific protection obligation undertaken by Australia is that contained in Article 33, namely, not to expel or return (refoul) a refugee in any manner whatsoever to the frontiers of territories where the life or freedom of the refugee would be threatened for any of the foregoing Convention reasons.  When Australia acceded to the Refugees Convention on 22 January 1954 it did not accept the obligations stipulated in Article 32.

9. In the written statement of findings and reasons provided by the Tribunal pursuant to s 430 of the Act, the Tribunal provided the following summary of the applicant’s claims:

   “… the applicant, a Hindu, had finished school in 1984 and gone to work at his father’s shop for four years, then been in regular employment at three other shops and a factory until 1995, been unemployed for a year, then worked at a hosiery factory until 1998 and a fruit shop until July 1999.  He had left Bangladesh for Indonesia in August 1999 and come to Australia in September.  He states that in 1991 he had gone to India for about six months to escape anti-Hindu riots.

   In the written submission accompanying his protection visa application the applicant stated that in 1995 his father, who had had no political affiliation, had on the occasion of a strike been beaten by people of certain political parties who objected to the fact that Hindus in the region supported the Awami League (AL).  His father “was well-known in the area because he had a successful shop and was known as a businessman” and there was animosity between him and Muslim leaders in the area.  While the father had been in hospital, unknown persons had known that he had been absent from his shop and had looted it.

   Some workers of the Bangladesh Nationalist Party (BNP), then in government, had forced him at gunpoint to agree to cast a vote for that party in the February 1996 election.  The applicant had not been a registered voter and had not wanted to vote but they had threatened him with death if he refused.  When he had arrived at the voting centre the voting there had been stopped and the centre closed.  Some AL activists had told him that they wanted to check if he was registered.  They had found a BNP voting ticket in his pocket and had beaten him up.  The police had arrived but the applicant had run away because he had thought that no-one would believe his story of having been forced to vote by the BNP.

   To avoid trouble, the applicant had left home and gone to other towns to live.

   In 1998 after he finished working at the hosiery factory he had come home but some people, possibly from the AL, had heard of his return and had come seeking him at his home.  He had not been at home at the time, and had again subsequently fled the area.

   He had gone to Dhaka and worked at a fruit shop but had been spotted there by people from his home area who had told the AL activists seeking him where he could be found.  These activists had been the ones who had beaten him when he had gone to the voting centre in 1996.

   The applicant had asked someone to help him flee from Bangladesh. … The applicant’s boss had taken the applicant to a friend of his who organised travel to Australia.  This man had wanted 150,000 taka for the passage.  The applicant had raised this money from his relatives and had left Bangladesh for Australia because the AL activists who had beaten him in 1996 were after him to harm him further.”

10. Under the heading “Findings and Reasons” the Tribunal said as follows:

    “The … applicant’s claims fall into three broad areas: whether he faced, and faces persecution as a Hindu; whether he faced, and faces persecution from members of the Awami League (AL) for being caught trying to vote illegally in February 1996; and whether the Bangladeshi consular official’s telephone conversation with the applicant demonstrated a sinister intent by the Bangladeshi AL Government (already, it is claimed, targeting him because of the 1996 incident) to persecute him on his return to Bangladesh.

    . . .

    I am not satisfied … that the applicant was persecuted for being a Hindu because the independent evidence quoted above – while pointing out that sometimes individual Hindus and other minority religion adherents might experience occasional discrimination or even harm over their beliefs – does not support a claim that Hindus face persecution.  It shows that Hindus can practise their religion freely and hold their traditional ceremonies.  I am therefore not satisfied that the applicant’s claims of not being able to practise religious rites freely is credible.  Whatever difficulties Hindus might face in this regard are said to be minimal, and I am not satisfied that a claim of persecution can be made out of this.  The independent evidence shows that members of minority religions face occasional attack by Muslim extremists.  However, it goes on to state that these actions are not condoned by the majority of Muslims in Bangladesh and that the Bangladeshi authorities act quickly to protect Hindus against the rare acts of communal violence that do occur.  Therefore there is state protection for the minority religions.

    Independent evidence by no means supports the applicant’s assertion that Hindu girls are raped (an action that the applicant seemed to indicate is common practice) or that Hindus are forced to convert to Islam.  Therefore I do not accept that these claims by the applicant are credible.  Rape, most unfortunately, occurs in every community, and I accept that it would be suffered in Bangladesh by girls who happen to be Hindu.  This is not the same as saying that Hindu women face such persecution for reason of their religion.  As stated before, there is no independent evidence to support such a claim.  I accept that some Hindus may convert to other religions just as they might do in other countries in order to facilitate a mixed marriage or for other personal reasons.  However, there is no basis on which I may draw a conclusion from the independent evidence cited above that forced conversion of Hindus occurs as a persecutory measure in Bangladesh.

    I am not satisfied that there are circumstances individual to the applicant which could sustain a claim that as a Hindu he faced persecution.

    I accept that his home had been attacked in 1991 and that he had gone to India shortly afterwards, but his evidence that police gave him assistance at the time of the 1991 attack demonstrates that he had state protection in Bangladesh.

    I accept that his father had become paralysed as a result of being beaten up in 1995, but the applicant’s evidence to the Departmental delegate shows that this injury was not a result of his religious beliefs but because, like many others, he chose to ignore a politically motivated strike and keep his shop open.  Therefore I do not accept that this incident signifies that the applicant’s family was harmed for its religious beliefs.

    I am not satisfied that the applicant faced discrimination amounting to persecution for his religious beliefs given his own evidence that he was able to be in regular employment, all the time with Muslim bosses, from the time he left his father’s shop in 1989 to 1999 when he left Bangladesh to come to Australia, and also given his evidence that he had been regarded with affection and care by some of those for whom and with whom he had worked, who had apparently lent him huge sums of money (given the applicant’s monthly salary of 500 taka to set in comparison against either the 1.3 million taka figure or the 350,000 taka figure) to pay for his trip to Australia.

    . . .

    For all of the above reasons, I am not satisfied that the applicant faced or risks persecution in Bangladesh for being a Hindu or that he had to leave his home to find safety over his religion.  There is no independent evidence on Bangladesh which suggests that any area is particularly dangerous for Hindus, so contrary to the applicant’s claims of not being able to practise his religion safely anywhere, I find that he could live where he likes and practise his religion freely.  It is possible that some areas might be furnished with more Hindu temples and like facilities than others because of the mix of the local population, and the applicant may choose to settle in those areas.”

11. On the hearing of the application for review the applicant was represented by counsel appointed by the Court under the pro bono scheme operating under Order 80 of the Federal Court Rules. The grounds for review relied upon by the applicant were first, that there was no evidence or other material to justify the making of the decision, the decision being based on the existence of particular facts that did not exist (s 476(1)(g), s 476(4)(b)); second, that the decision involved an incorrect application of the law to the facts found by the Tribunal (s 476(1)(e)); and third, that the Tribunal failed to observe procedures the Act required the Tribunal to observe in connection with the making of the decision (s 476(1)(a); s 430).

12. It is convenient to deal with the second and third grounds first. As expounded, the submission in respect to the third ground was to the effect that the Tribunal failed to make a material finding of fact, or failed to provide reasons why evidence capable of supporting a finding of fact contrary to that found by the Tribunal, had been rejected and that such failures constituted a failure to observe procedures the Tribunal was required to observe by s 430 of the Act.

13. The recent decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 makes it clear that s 430 instructs the Tribunal to set out the findings of fact that it actually makes and the reasons it actually relies upon. Section 430 does not impose a procedural requirement on the Tribunal to record findings of fact not made or reasons not relied upon, and in such circumstances s 430 has no relevance to s 476(1)(a) of the Act. Of course, a failure by the Tribunal to make a material finding of fact or the disclosure in the reasons of the Tribunal of a failure to address the relevant question may point to “jurisdictional error”, and ground for review may arise under other provisions of s 476(1). (See: Yusuf per Gleeson CJ at [10], per McHugh, Gummow and Hayne JJ at [76]-[83].) No such ground was relied upon in this case.

14. The third ground, therefore, must fail.

15. With regard to the second ground the applicant pointed to what was submitted to be an untoward reliance by the Tribunal on perceived inconsistencies in statements made by the applicant on the occasions he had been interviewed by officers of the Minister’s Department and by the Tribunal, such inconsistencies, it was said, being relatively insignificant.

16. In determining what were the past events that had occurred in Bangladesh that affected the applicant, it was the Tribunal’s function to give such weight as it saw fit to the material before it, subject to the Tribunal addressing the issues raised by the material and not acting arbitrarily in its treatment thereof.

17. It was open to the Tribunal not to be persuaded by the applicant’s statements that the events described by the applicant had occurred.  Of course, that did not dispose of the application by obliging the Tribunal to conclude that it was not satisfied that there was a real risk that the applicant would be persecuted for a Convention reason if he were returned to Bangladesh.  As Gleeson CJ and McHugh J stated in Abebe v Commonwealth (1999) 197 CLR 510 at [83]:

    “… even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution.  The Tribunal “must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution”: Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 576.”

18. If however, strong findings have been made by the Tribunal contrary to the applicant’s claims, the Tribunal is not then bound, as it otherwise would be, to take into account the applicant’s claims in assessing the extent of the risk of persecution occurring in future (Guo per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at p 576; Abebe per Gleeson CJ, McHugh J at [84]-[85]).

19. This was such a case.  The Tribunal, on material that permitted such conclusions, made findings that: “Hindus can practise their religion freely”; “there is state protection for the minority religions”; and that “(the applicant) could live where he likes and practise his religion freely”.  In the words used by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Guo, (at 576) “the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct”.

20. It follows that it has not been shown that the Tribunal incorrectly applied the relevant law to the facts it found and the second ground must fail.

21. In respect of the final ground of appeal the applicant submitted that the decision of the Tribunal was based on the existence of a particular fact, namely, that in 1995 a severe assault on the applicant’s father did not occur by reason of religion.  In an appropriate case, a decision based on multiple findings of fact by the Tribunal may be, nonetheless, a decision based on one such finding if it may be said that that finding was material to the Tribunal’s decision (See: Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 per Black CJ at 220-221). But unless it were established before this Court as a fact that the assault on the applicant’s father was by reason of religion, no argument can arise that a ground for review is provided by s 476(1)(g) of the Act.

22. Counsel for the applicant contended that the Tribunal misunderstood the applicant’s “evidence” when the applicant was interviewed by the Minister’s delegate, and had relied on that mistaken understanding of the applicant’s evidence to find as a fact that the assault on the applicant’s father was not by reason of religion.  It was submitted that the Tribunal acted on the incorrect assumption that the applicant had said that his father was beaten because in the course of a national strike his father’s shop had been opened from time to time, contrary to the apparent instruction of influential people who had implemented the strike that all traders keep their shops closed. 

23. Even if that submission were made good it would not establish the ground of review relied upon.  The primary task of showing that the fact relied upon by the Tribunal, namely, that the beating of the applicant’s father was not by reason of religion, did not exist, was not undertaken and therefore, the ground cannot succeed.  In any event the decision of the Tribunal that there was no real risk that the applicant would suffer persecution by reason of religion if he were returned to Bangladesh, relied on other express findings by the Tribunal, namely, that a Hindu in Bangladesh was not at risk of harm, or discrimination, by reason of religion.  The decision of the Tribunal did not depend upon a finding that the assault upon the applicant’s father had not been carried out by persons motivated by issues relating to religion. 

24. It follows that this ground also fails and that the application for review must be dismissed.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate:

Dated:             22 June 2001

Counsel for the Applicant:	Mr G A Rabe
Counsel for the Respondent:	Mr A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 March 2001
Date Supplementary Submissions Filed:	27 April 2001; 18 May 2001
Date of Judgment:	22 June 2001