SZAIZ v Minister for Immigration
[2004] FMCA 22
•23 January 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAIZ v MINISTER FOR IMMIGRATION | [2004] FMCA 22 |
| MIGRATION – Review of RRT decision – where applicant’s oral testimony conflicted with written submissions – whether RRT failed to consider whether applicant would be afforded effective state protection – where applicant claimed that he was a victim of extortion targeted because he was a successful Hindu businessman – whether RRT limited its consideration of persecution to the persecutor’s personal motivations and did not consider whether the convention based reason was the “essential and significant reason” for the alleged persecution – whether RRT relied on country information which post dated the events in question – where applicant claimed that it was not reasonable for him to relocate within his country of nationality because he would continue to suffer the same persecution unless he abandoned his occupation and alleged political activity. |
Migration Act 1958 (Cth), s.91R(1)(a)
Federal Magistrates Court Rules, P 21 r 21.02(2)(a)
Welivita v Minister for Immigration (unreported) 18 November 1996
Minister for Immigration v Khawar [2002] CLR 1
Labara v MIMA [2002] FCAFC 145
A & Ors v Minister for Immigration [1999] FCA 116
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] 93 FCR 220
NAFT v Minister for Immigration [2003] FCAFC 254
Minister for Immigration v Yusuf [2001] 206 CLR 323
Minister for Immigration v Eshutu (1999) 197 CLR 611
Minister for Immigration v Guo (1997) 197 CLR 559
S395 of 2002 v Minister for Immigration [2003] HCA 71
“The Open Society and its Enemies” Karl Popper, Routledge 1945
| Applicant: | SZAIZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 536 of 2003 |
| Delivered on: | 23 January 2004 |
| Delivered at: | Sydney |
| Hearing date: | 15 January 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondent: | Mr J Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 536 of 2003
| SZAIZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh. He arrived in Australia on 25 July 1999. On 6 August 1999 the applicant lodged an application for a protection (Class XA) visa. On 22 October 1999 a delegate of the Minister refused to grant a protection visa and on 17 November 1999 the applicant applied for a review of that decision. The applicant was represented by a firm of immigration lawyers before the Tribunal and submitted to the Tribunal a considerable quantity of information and representations. The applicant gave oral evidence to the Tribunal on 18 July 2002. The Tribunal provided the applicant with an opportunity to supply it with additional information. The Tribunal came to its decision on 20 November 2002 and handed it down on 17 December 2002. The Tribunal affirmed the decision not to grant a protection visa.
The applicant is a twenty-nine year old college educated young man from Chittagong in Bangladesh. He is a Hindu. He worked as a shopkeeper in a shop previously owned by his late father. He claimed that as a Hindu and as an affiliate of the Hindu Buddah Christian Oikya Parisad, an organisation dedicated to bringing harmony between persons of different faiths, he was targeted by fundamentalist Muslims. False charges were brought against him and he had been the subject of serious and successful attempts at extortion. He claimed that he had been beaten up when he declined to pay some extortion money, that he was unsuccessful in going to the Police about this matter and that because he felt his life was in danger he left Bangladesh for Australia.
The applicant also told the Tribunal that a former teacher of his had been killed in November 2001 and that the people who were responsible for that incident were the same people he had previously mentioned as having targeted himself.
In its findings and reasons the Tribunal examined the claims made by the applicant under a number of headings. It made the general observation that where the applicant’s oral testimony had conflicted with written submissions the Tribunal preferred the oral testimony. So that, for example, it preferred his oral testimony that he had not gone to the Police on either occasion upon which he had been the victim of extortion attempts. I set out below a précis of the Tribunal’s findings in relation to each of the allegations which made up the applicant’s alleged fear.
Hindu Buddah Christian Oikya Parisad
The Tribunal preferred the evidence given by the applicant at the hearing that the only HBCOP activity in his area was a monthly meeting to discuss internal matters which he himself attended only infrequently (approximately every six months). The applicant had not held any specific positions. The Tribunal preferred this evidence over that contained in a letter from a HBCOP national office bearer stating that the applicant was an active member. The Tribunal came to the conclusion that the applicant’s involvement in the HBCOP was minimal and he was engaged in no substantive activities which would have created any significant profile. The Tribunal did not accept that the applicant was (or on return would be) targeted and persecuted for this reason.
False charges
In his oral evidence the applicant informed the Tribunal that a warrant had been issued in November 1998, some eight months before he left Bangladesh. He indicated that although the police had attended at his house in relation to the warrant they had not pursued the matter because they realised the case was false and he had not been arrested. The Tribunal accepted this evidence and noted that the applicant apparently encountered no further difficulties in this connection until his departure in 1999 and was able to obtain a passport and depart openly. The Tribunal did not accept that there was a real chance that the applicant would face serious difficulties on return to Bangladesh in relation to the warrant even in the context of a present crackdown on serious crime. The Tribunal noted the decision of Welivita v Minister for Immigration (unreported) 18 November 1996 per Lindgren J where at [21] His Honour said:
“Clearly, the mere fact that a person will, upon returning to his or her country of nationality, be prosecuted and penalised for a criminal offence does not establish the existence of a well founded fear of being persecuted for reasons of political opinion … the mere fact that the criminal offence was “politically motivated” makes no difference.”
Extortion and threats
The Tribunal accepted the applicant’s evidence that the local groups which had over the years sought to extort money from him and his family were, (although they allegedly involved Muslim extremists), primarily engaged in criminal activities and were instigated by local (Muslim) business rivals who were jealous of his successful business. In a post hearing submission on behalf of the applicant his adviser said:
“The applicant believes he was targeted because he was a young successful Hindu businessman.”
The Tribunal stated at [336]:
“The evidence does not suggest that Muslim businessmen are immune from local extortion and it appears that the applicant was distinguished from his fellows in the eyes of those targeting him not primarily by his religion but by his perceived ability to respond to demands for money. Considered in the context of the general country information about the level of crime and extortion in Bangladesh (affecting all communities and not just Hindus), the Tribunal is satisfied that the specific difficulties complained of by the applicant, amounting to extortion accompanied by threats, were not essentially and significantly motivated by the applicant’s religion but were rather opportunistically motivated because of his perceived ability to pay and the hostility of local business rivals.”
Murder of college principal
Whilst the Tribunal accepted that the college principal was murdered in Chittagong in November 2001 by gunmen allegedly loyal to Jamaat-Shibir it noted that the murder was also described as having been instigated by two teachers because of a dispute between them and the principal. It went on to say:
“The Tribunal can discern no compelling direct link or significance of the applicant’s situation from these facts, other than that the group which sought to extort money from him had by November 2001 progressed to more serious crime, or that a Hindu with a very much higher profile than the applicant might risk harm from the extremist fringe. It is also clear from the news reports that the authorities were actively investigating this murder as a serious crime and in no way condoning it or refusing to act.”
Hindus in Bangladesh
The Tribunal quoted extensively from country information concerning the situation of Hindus in Bangladesh and concluded at [CB 340]:
“It is evident from these reports that the authorities are not condoning violence by local BNP activists or others (whether against Hindus or more generally). … The Tribunal is satisfied that (notwithstanding the sweeping assertions in some of the materials submitted), the serious disturbances targeting Hindus were limited to a period of some weeks immediately following the elections in October 2001 and generally to some particular (rural) localities, although the Tribunal does not exclude that in some specific remote places there may be ongoing problems. Having considered all the material before it, the Tribunal does not accept that as a matter of fact Bangladesh is now dominated by Islamic fundamentalists or that they are in power or that there is an ongoing violent pogrom against Hindus.”
The Tribunal then went on to consider the possibility of the applicant relocating from Chittagong to Dhaka. It noted that he had apparently lived safely in Dhaka for six months in 1999 and acknowledged at the hearing that he was not known there. The Tribunal came to the conclusion at [341]:
“Although various extremist organisations may exist in Dhaka as elsewhere, the Tribunal is not satisfied that the particular persons operating in Chittagong and to whom the applicant is known and who have opportunistically targeted him in relation to his business activities and his perceived financial position (whether or not they are members of particular organisations also present elsewhere) would now search for the applicant to identify and target him in another city of several million people. The Tribunal is therefore satisfied that it would be reasonably open to the applicant to avoid any perceived difficulties in his own particular district in Chittagong by relocating within Bangladesh, to Dhaka.”
I was greatly assisted by the provision to me of detailed written submissions, both by Mr Zipser on behalf of the applicant and Mr Potts on behalf of the respondent. In these reasons I will borrow heavily from their submissions without further indentation or acknowledgment of particular passages. Mr Zipser split up his submissions into the issues which I have discussed already and that approach was also taken by Mr Potts. Mr Zipser informed me that he believed his strongest point could be made in relation to the “Hindus in Bangladesh” issue. Mr Zipser argued that the Tribunal’s finding that it did not accept that as a matter of fact Bangladesh is now dominated by Islamic fundamentalists or that they are in power or that there is an ongoing violent progrom against Hindus does not fully respond to the applicant’s claims. It does not consider the question whether the authorities are unable to control attacks by Islamic fundamentalists on Hindus. It was argued that there was country information before the Tribunal which demonstrated discrimination and disturbances by Muslims against Hindus, some of which were serious and which the Tribunal indicated were limited to a period of some weeks immediately following the elections in 2001. He argued that there was country information available referring to the breakdown in law and order in Bangladesh in November 2002 and therefore the Tribunal should have considered whether there was a risk of harm to the applicant that the authorities in Bangladesh could not provide protection against. He submitted that this had not been addressed. He referred to the four categories of classification of cases in terms of the involvement of state agents discussed by the High Court in Minister for Immigration v Khawar [2002] CLR 1 at [114]:
“ (a) Persecution committed by the state concerned.
(b) Persecution condoned by the state concerned.
(c) Persecution tolerated by the state concerned.
(d)Persecution not condoned or not tolerated by the state concerned but nevertheless present because the state either refuses or is unable to offer adequate protection.”
Mr Zipser argued that whilst the Tribunal had dealt with (b) and that it was not argued that (a) applied, it had not concerned itself with (c) and particularly (d). Mr Zipser relied on the decision of the Full Bench of the Federal Court in Labara v MIMA [2002] FCAFC 145 where the Full Bench identified a jurisdictional error in failing to consider a right question namely:
“Whether, in a practical sense, the state was able to provide protection particularly in light of the pervasive pattern of harm.”
Mr Zipser also relied on the dicta of the Full Bench in A & Ors v Minister for Immigration [1999] FCA 116 at [42]:
“On the other hand it is necessary that the decision maker form a conclusion about the effectiveness of the relevant state protection and do so on some material whether presented by the claimant, otherwise available to the decision maker or following additional enquiries by the decision maker.”
The respondent argues that there are a number of occasions in the Tribunal’s decision where the issue of effective state protection is dealt with. At [CB 335] the Tribunal notes that the police took no substantive action in relation to the false charges because, as the applicant said, they realised that the cases were false and by so doing they acted appropriately. At [CB 337] the Tribunal noted that the authorities were actively investigating the murder of the college principal and were in no way condoning the murder or refusing to act. At [CB 338] the Tribunal published some country information from the UK Home Office indicating that the Government will take the necessary steps to ensure the safety of the minorities although at [CB 339] it was indicated:
“Police, who generally are ineffective in holding law and order, often are slow to assist members of religious minorities who have been the victims of crimes.”
Further country information provided at [CB 339] indicated the police had been deployed across Bangladesh to avert any incident following communal violence in India in February 2002 and had already deployed police across the country to defend Hindus and their property. At [CB 340] it was noted that violence against minorities would not be tolerated.
I am of the view that the views of Kirby J in Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 are apposite:
“The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision maker with a fine appellate toothcomb against the prospect that a verbal slip will be found warranting the inference of an error of law.”
Applying this dicta to the whole of the decision I am satisfied that the Tribunal did turn its mind to whether or not the state was able to offer adequate protection to the applicant if he returned and did not restrict it to the failure of the state to condone the persecution which was feared.
The extortion issue
The applicant claimed that on a number of occasions between 1992 and 1999, whilst he was living in Chittagong, Muslim extremists sought to extort money from him. He claimed that he had been targeted because he was a young successful Hindu businessman. The Tribunal did not reject the applicant’s claim that he suffered extortion but dealt with at [CB 336-337] in the following paragraph:
“The evidence does not suggest that Muslim businessmen are immune from local extortion and it appears that the applicant was distinguished from his fellows in the eyes of those targeting him not primarily by his religion but by his perceived ability to respond to demands to money. Considered in the context of general country information about the level of crime and extortion in Bangladesh (affecting all communities and not just Hindus), the Tribunal is not satisfied that the specific difficulties complained of by the applicant, amounting to extortion accompanied by threats, were not essentially and significantly motivated by the applicant’s religion but were rather opportunistically motivated by his perceived ability to pay and the hostility of local business rivals.”
The applicant has three complaints about the passage. Firstly he argues that the RRT did not appreciate that there could be more than one “essential and significant reason” and therefore applied the wrong legal test and fell into jurisdictional error. In this regard I think it is the applicant who is in error. The revised explanatory memorandum to the amending Act which inserted s 91R explains what is required of the decision maker:
“[21] Under the new paragraph 91R(1)(a), persecution for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention does not constitute persecution unless that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution. The Refugees Convention does not require that persecution for non-Convention grounds be taken into account in assessing whether a person is owed protection obligations under the Convention. Where the harm feared is attributed to a number of motivations, the proposed legislation will make it clear that it is insufficient that there are merely minor or non-central Convention related motivations in order to bring the persecution within the scope of the Convention. However, persecution for multiple motivations will satisfy the proposed legislative requirements where the Convention ground or grounds in aggregate constitute at least the essential and significant motivation for the harm feared.”
In this case the Tribunal was required to consider whether, even if there was a personal motivating factor, there was also a Convention related motivation. It is then required to consider if that reason or those reasons collectively are the essential and significant reason for the persecution in question. The Tribunal set out the manner in which it approached s 91R(1)(a) of the Migration Act 1958 (Cth) at [CB 322]:
“Third, the persecution which the applicant fears must be for one of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase “for reasons of” serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.”
It seems to me that the use of the word “the” in that last phrase is simply a reflection of the use of the word “the” and the wording of s 91R(1)(a). My reading of the decision of the Tribunal in regard to this matter does not indicate a choice having been made between personal motivation and Convention based motivation but rather a demonstration that the Tribunal considered whether the Convention reason said to give rise to the persecution alleged was the “essential and significant reason” for that persecution. The Tribunal came to the conclusion that it was not, although the applicant’s religion (a Convention reason) may have been one motivating reason for the persecution alleged. There was a considerable amount of evidence concerning this type of problem from which the Tribunal could have come to the conclusion which it reached.
The applicant then complains that there was no evidence before the Tribunal that between 1997 and 1999 Muslim businessmen experienced local extortion. The information relied upon by the Tribunal to come to the view that extortion was a general problem within the country affecting all communities and not just Hindus is certainly dated later than 1997 to 1999. Such information can be found at [CB 449, 511 & 514]. The Tribunal is not in the position of a contradictor. It is entitled to weigh up the assertions of the applicant against general country information at its disposal and come to a view. That factual view may be wrong. But it is not a jurisdictional error unless it constitutes a fact found in total absence of evidence. I do not think one can make such a finding in this case. The third point made by the applicant is that the Tribunal, in considering the passage quoted in [7] above, is whether the extortion experienced by the applicant between 1992 and 1999 was motivated for a Convention reason. He argues that where the Tribunal refers to the context of the general country information about the level of crime and extortion in Bangladesh it would be necessary for the Tribunal to consider the country information for the period 1992 to 1999. He argues that the Tribunal does not appear to have done this but appears to have assessed the persecutor’s motivation on the basis of country information in relation to the period between 2001 and 2002. This, he argues, constitutes the Tribunal taking into account irrelevant material (country information for 2001 and 2002) or ignoring relevant material (being the country information for 1992 to 1999) or failing to properly carry out its functions in assessing the applicant’s claims.
In fact, a perusal of the Court Book would indicate that the RRT used country information which included US State Department Reports from 1990 [CB 424-432] and 1992 [CB 433-443]. The Tribunal is also entitled to use its own expertise gleaned from many years of dealing with similar claims. In these circumstances it cannot be said that the Tribunal relied solely on evidence about extortion that postdated the events in question. Even if the RRT did commit an error in its interpretation of that country information or some of the evidence as Kenny J said in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] 93 FCR 220 at [146]:
“A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning.”
The applicant also made complaints that the Tribunal did not comply with s 430 by not giving adequate reasons in relation to its findings in this regard. This matter was not pressed emphatically and it is clear from such cases as NAFT v Minister for Immigration [2003] FCAFC 254 at [7], Minister for Immigration v Yusuf [2001] 206 CLR 323 and Minister for Immigration v Eshutu (1999) 197 CLR 611 that such a failure is not capable of amounting to jurisdictional error.
The false charges claim issue
The applicant submitted that the Tribunal did not reject the claim that a murder charge had been made against him and a warrant had issued on 6 November 1998. He argues that the decision in Minister for Immigration v Guo (1997) 197 CLR 559 at [575] requires the Tribunal to give consideration to whether a further false claim might be brought against the applicant in the future, and if so, whether this could give rise to a well founded fear of persecution for a Convention reason. He says the Tribunal failed to consider this matter.
I am satisfied that the Tribunal considered the question of the false claim and came to a conclusion, available on the evidence, that it was not longer a matter of concern. The police had failed to do anything about it because, as the applicant asserted, they appreciated the charge was false. This being the case the Tribunal was entitled to come to a view that any further false charges would be dealt with similarly.
I also do not accept that Guo requires the Tribunal to make an assumption that whatever occurred in the past must occur in the future. The poverty of this type of historicism was conclusively demonstrated by Karl Popper in “The Open Society and its Enemies” in 1945.
The relocation issue
The Tribunal found that it would be reasonably open to the applicant to avoid any perceived difficulties in his own particular district in Chittagong by relocating within Bangladesh to Dhaka. I accept that if I had found that the Tribunal had fallen into jurisdictional error in relation to the Hindus in Bangladesh issue or in relation to the extortion issue then the relocation finding does not assist. The Tribunal did not address the question of whether affective state protection could be given to the applicant in Dhaka and that failure would constitute jurisdictional error. However, I did not find that the Tribunal erred in relation to Hindus in Bangladesh and therefore the question of relocation is apt. I would accept that if I had found that the Tribunal had erred in relation to the extortion issue it required the Tribunal to make a further consideration of what might occur in Dhaka which it did not. However, I made no such finding.
The applicant relies upon the dicta of McHugh and Kirby JJ in S395 of 2002 v Minister for Immigration [2003] HCA 71 at [50] where their Honours say:
“Insofar as decisions in the Tribunal or in the Federal Court contain statements that asylum seekers are required, or can be expected to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed.”
The applicant argues that he was a businessman in Chittagong. If he was required to relocate to Dhaka the question is whether if he continues to pursue his occupation and his alleged political activity, he will come to the attention of Muslims in Dhaka and experience extortion type persecution for a Convention reason. He says the Tribunal failed to consider this question, which was a jurisdictional error.
In regard to these submissions I would say firstly that I think the applicant has misunderstood the effect of S395. I would not accept that case as authority for the proposition that the question of reasonableness does not enter into the consideration of the possibility of relocation. But in any event it seems to me that the Tribunal did take into account the possibility that if the applicant relocated he would come to the attention of Muslims in Dhaka. There is a discussion between the applicant and the Tribunal which is recorded at [CB 330] as follows:
“The applicant acknowledged that an alternative for him if he returned could be to move from Chittagong to Dhaka, where he is not known. However, he noted that the two cities are only 3½ hours distant, while at the same time the Chatra Shibir and Jamaat-e-Islmai supporters are active in Dhaka, so how could it be said that he could find a safe life in Dhaka.”
Clearly the possibility was considered by the Tribunal and rejected.
I have been unable to find that the Tribunal fell into jurisdictional error in respect of any of the issues considered and argued so thoroughly by the applicant. I dismiss the application. I order that the applicant pay the respondent’s costs which I assess (because of the considerable amount of work required to respond to the applicant’s submissions) in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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