SPBB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1045

FEDERAL COURT OF AUSTRALIA

SPBB v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1045

SPBB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
S 528 of 2003

SELWAY J
10 OCTOBER 2003
DARWIN (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 528 OF 2003

ON APPEAL FROM THE REFUGEE REVIEW TRIBUNAL

BETWEEN:	SPBB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	10 OCTOBER 2003
WHERE MADE:	DARWIN (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

1.The application for judicial review is dismissed. 

2.The applicant pay the respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 528 OF 2003

ON APPEAL FROM THE REFUGEE REVIEW TRIBUNAL

BETWEEN:	SPBB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	10 OCTOBER 2003
PLACE:	DARWIN (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

1. The applicant has sought judicial review of the proceedings before the Refugee Review Tribunal (the Tribunal) in which the Tribunal affirmed the decision that the applicant not be granted a protection visa.  For the reasons given below the judicial review application is dismissed.

2. The applicant is a citizen of Bangladesh.  He left that country in 2001 for the purpose of studying in Australia.  His family provided him with financial support for that purpose.  He entered and stayed in Australia on a student visa.  For various reasons the financial support that had been provided by his family could not be continued.  He discontinued his studies.  He applied for and was granted a visitor’s visa in July, 2002.  This enabled him to stay in Australia, but it was a condition of that visa that he was not permitted to work in Australia.  He breached that condition and was taken into detention.  In December, 2002 the applicant applied for a protection visa.

3. In order to obtain such a protection visa the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) had to be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Migration Act 1958 (‘the Act’).  In general terms the Minister had to be satisfied that the applicant was a ‘refugee’ as defined in the Convention being a person who:

   ‘…owing to a well-founded fear of being persecuted for reason 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; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.’  

4. There were two bases upon which the applicant claimed that he was a refugee.  The first was that he was persecuted for political reasons whilst he was a student at Dhaka College between December, 1997 and December, 2000.  He claimed that there were two political groupings to which the majority of students belonged – the Bangladesh Nationalist Party (BNP) and the Awami League.  He claimed that he had refused to join either political grouping.  Pressure was placed on him by the competing political groupings for him to join them.  He claimed that on one occasion he had been threatened by one of the political groups.  He also claimed that on another occasion he had been kidnapped by a number of members of the BNP and that he was assaulted by them resulting in a broken finger and thumb.  He was then released.

5. The other basis for the claim was that he was in fear of being attacked by a particular person, Mr Mazbah.  The applicant claimed that Mr Mazbah had been involved in the death of the applicant’s uncle in Japan in 1997.  The uncle had attended a speech by a member of the Awami League whom the uncle knew, although the uncle himself was not involved in politics.  The relevant member was attacked by members of an opposing faction, including Mr Mazbah.  The uncle intervened and was killed.  At the uncle’s funeral the applicant threatened to kill Mr Mazbah.  Subsequently, Mr Mazbah had seen the applicant on the street in the town of Shibchar where Mr Mazbah lived.  Mr Mazbah told the applicant that he would harm the applicant if the applicant returned to Shibchar.

6. In relation to both of these claims the applicant claimed that the police and authorities would be unable or unwilling to protect the applicant.

7. The applicant’s claims were initially considered by a delegate of the Minister.  The delegate concluded that the claim of kidnapping was not credible.  Indeed, the applicant had stated to the delegate that ‘he does not fear [the students who kidnapped him] now as he is not attending Dhaka College and the men are no longer at the College’.  The delegate also concluded that the claim by the applicant that he feared Mr Mazbah was not credible.  The delegate also found that even if there was some risk from Mr Mazbah, the applicant could relocate to another part of Bangladesh if that was necessary.  In the result the delegate concluded that the applicant’s fear of Convention based persecution was not well founded.

8. The applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of the delegate’s decision.  In his application for review the applicant concentrated on the second claim being the threat from Mr Mazbah.  It would appear that the applicant largely abandoned the first claim, at least in his application.  Indeed, in his application he criticised the delegate for concentrating on the kidnapping claim, pointing out that ‘I’m not concerned about the kidnapping… it’s not my claim.’  He said that the delegate should have focussed her attention on ‘my main claim’.  It is not surprising that the applicant should have abandoned this particular claim.  As the applicant had pointed out to the delegate whatever threat the other students may have posed to him in the past that threat was not a continuing threat given that he was no longer a student at Dhaka College.  Nevertheless, the applicant would seem to have relied upon both claims in his interview with the Tribunal.

9. The Tribunal dealt with both of the claims.  Its findings and reasons were as follows:

   ‘The applicant provided consistent evidence to the delegate and to the Tribunal that his uncle was killed in a dispute between Awami League leaders in Japan; that the applicant’s family directly approached the then Prime Minister, Sheikh Hasina, to ensure that his uncle’s death was properly investigated; that the applicant and his family believe, despite assurances to the contrary from Sheikh Hasina, that the Bangladeshi authorities have not investigated the matter; and that he believes that a person named Mazbah was responsible for his uncle’s death. The Tribunal therefore accepts that the applicant’s evidence in these respects is credible.

   The Tribunal is prepared to accept the applicant’s evidence at the hearing that he publicly threatened to kill Mazbah at his uncle’s funeral to avenge his uncle’s death, which had occurred in June 1997; and that he encountered Mazbah in the city of Shibchar in 1999 and that, on that occasion, Mazbah threatened to harm him if he returned to Shibchar.

   The Tribunal does not accept, however, that Mazbah had determined, or was seriously motivated, to harm the applicant for any reason. The Tribunal refers to the applicant’s evidence of Mazbah’s threat against him on one occasion - in 1999; to his evidence that he visited Shibchar on subsequent occasions without encountering Mazbah; and to the evidence that he remained in Bangladesh until April 2001 without being threatened by Mazbah on any other occasion. In these circumstances, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted by Mazbah, or associates of Mazbah for any reason.

   The Tribunal accepts that violence and intimidation are a feature of student politics in Bangladesh. Nevertheless, the Tribunal does not accept that supporters of the Awami League and the BNP have been, or would be, essentially and significantly motivated to harm the applicant for political reasons. The Tribunal refers to the applicant’s evidence that his vote was one of approximately 20,000 votes to be cast in student elections; that he was not interested in Bangladeshi politics; and that supporters of the Awami League and the BNP would target him upon his return to Bangladesh for financial reasons.

   The Tribunal also refers to the applicant’s evidence at the hearing that he was seriously harmed by Awami League supporters on or about 29 May 2000. The Tribunal finds it incongruous that the applicant would have continued to be a student at Dhaka College for approximately six months if he had been harmed by Awami League supporters in the circumstances he described. The Tribunal also notes that the applicant did not claim to have been threatened or harmed by Awami League supporters, or supporters of any other political party, in the period between about 29 May 2000 and April 2001 when he departed Bangladesh for Australia.

   In these circumstances, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted by supporters of the Awami League or the BNP for political reasons, or for any other Convention reason, upon his return to Bangladesh.    

   CONCLUSION

   Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.’

10. The Tribunal affirmed the decision not to grant a protection visa.

11. Pursuant to s 39B of the Judiciary Act 1903 (Cth) the applicant instituted judicial review proceedings in this Court seeking certiorari, prohibition and mandamus in relation to the Tribunal and its decision. The applicant claimed that the Tribunal made various jurisdictional errors in its consideration of his application for review. The following jurisdictional errors are claimed:

    (a)     the Tribunal did not make a positive finding in relation to the kidnapping issue;

    (b)the Tribunal did not consider and/or take into account the defects in policing and lack of safety for citizens in Bangladesh;

    (c)the Tribunal failed to consider whether there was a real chance of persecution from Mr Mazbah;

    (d)     the reasons given by the Tribunal are inadequate.

12. In my view none of these alleged errors can be made out.  In particular:

    (a)on a fair reading of the Tribunal’s reasons it is clear that the Tribunal was not satisfied that the applicant had been kidnapped as alleged.  Although the applicant criticised the Tribunal’s use of the word ‘incongruous’, it is clear in the context that the Tribunal has used that word as one of the reasons for its lack of satisfaction that the ‘supporters of the Awami League and the BNP have been, or would be, essentially and significantly motivated to harm the applicant for political reasons’.  Elsewhere in its reasons the Tribunal pointed to the issues it had raised with the applicant relating to the alleged kidnapping.  It is clear that the Tribunal thought that the allegation was inherently implausible.  This is not surprising.  But in any case it was an issue for the Tribunal.

    (b)It was unnecessary for the Tribunal to deal expressly with the issue of whether the actions of private individuals or groups of individuals, be they Mr Mazbah or politically motivated students, could constitute ‘persecution’ for the purposes of the Refugee Convention.  It is true that this issue can, on occasion, raise difficult issues in cases where it is fairly raised: see, for example Minister for Immigration and Multicultural Affairs v Khawar (2002) 187 ALR 574 and see Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672 at 678, 681. But in this case the Tribunal did not accept that there was a real chance of harm from the relevant private individuals. It was unnecessary for the Tribunal to consider the significance or otherwise of the actions, or lack thereof, of the police and other authorities in Bangladesh. The relevance of that issue would only have arisen if the Tribunal had been satisfied that there was a real chance that the applicant would suffer harm from the private individuals as alleged.

    (c)It is clear that the applicant was simply not believed in his claims that the student groups had harmed him for political reasons.  It is also clear that the Tribunal was not satisfied that Mr Mazbah had determined to harm the applicant, notwithstanding what he had said to the applicant some four years previously.  There is no basis upon which it can be concluded that the Tribunal applied any erroneous tests in reaching its conclusions.  Indeed, they seem self-evident.

    (d)There is no legal principle that reasons are required to be long and detailed.  Indeed, brevity is generally to be applauded, so long as it is consistent with the performance by the Tribunal of its legal obligations.

13. Furthermore there seem to me to be other fundamental problems with the claims made by the applicant.  Even if the Tribunal had accepted the claims made by the applicant as to the harm that he claimed he had suffered and as to the fears that he claimed to have, I do not think he would have been entitled to a protection visa.  The claims that he made, even if they had been wholly accepted, did not establish that he was a refugee:

    (a)even if he was believed in the claim that he had been kidnapped and even if it was accepted that the failure of the police to protect him from such a risk could constitute persecution, the point made by the applicant to the delegate seems conclusive: whatever may have been the position whilst he was a student, the applicant is no longer a student a Dhaka College.  Nor does there seem any suggestion that he will return to the College.  Not is it at all clear that the Refugee Convention would apply where the only risk was conditional upon his desire to pursue tertiary studies.  Whatever may have been the position in 1999, the applicant does not now have a well-founded fear of persecution if he is returned to Bangladesh.

    (b)Even accepting that Mr Mazbah will harm the applicant if the applicant returns to Shibchar and even accepting that that harm would constitute ‘persecution’, the basis for that harm would seem to be retaliation for the threat that the applicant made to kill Mr Mazbah which in turn was retaliation for Mr Mazbah’s role in the death of the applicant’s uncle.  Even accepting that the applicant’s uncle was killed during an attempted political assassination, the threat to harm the applicant would not seem to be based upon the applicant’s political opinion or, indeed, anyone else’s political opinion whether actual or imputed.  Consequently, the relevant persecution, even if it existed, would not seem to be for a Convention reason.

    (c)In any event, the threat by Mr Mazbah, as alleged by the applicant, is limited to the applicant returning to the town of Shibchar.  As the delegate found, on the evidence in this case even if the applicant could not return to Shibchar this would not establish that he had a well-founded fear of persecution if he was returned to Bangladesh.  There was no reason given by the applicant as to why he could not live elsewhere.

14. In these circumstances it is unnecessary to consider whether any of the alleged errors by the Tribunal could be characterised as ‘jurisdictional errors’.  None of the alleged errors by the Tribunal have been established.  Further, the claims made by the applicant, even if they had been accepted, did not establish that he was a ‘refugee’.

15. The application for judicial review is dismissed.  The respondent is entitled to his costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:             10 October 2003

Counsel for the Applicant:	GA Britton
Solicitor for the Applicant:	Refugee Advocacy Service of South Australia Inc
Counsel for the Respondent:	MJ Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	29 September 2003
Date of Judgment:	10 October 2003