SZAOC v Minister for Immigration

[2004] FMCA 129

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAOC v MINISTER FOR IMMIGRATION [2004] FMCA 129

MIGRATION – Review of decision of RRT – where applicant claimed to be an apostate from Islam to Russian Orthodoxy – where Tribunal made findings about his conversion – whether such findings failed to take into account available evidence – whether findings were relevant to the principal integers of the matter – whether the applicant had an objective fear of persecution by reason of his apostasy – whether applicant could relocate.

Minister for Immigration v Khawar [2002] HCA 140
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration v Yusuf (2001) 206 CLR 323

Applicant: SZAOC

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 781 of 2003

Delivered on: 11 March 2004

Delivered at: Sydney

Hearing date: 4 March 2004

Judgment of: Raphael FM

REPRESENTATION

Solicitors for the Applicant: Mr N Dobbie of Parish Patience

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 781 of 2003

SZAOC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a national of Bangladesh.  He first arrived in Australia on 29 July 2000 on a student visa and remained here until

   
   

   17 November 2001.  He travelled voluntarily to Bangladesh and returned on 29 November 2001, again on his student visa. On

   
   

   27 February 2002 the applicant was placed into immigration detention arising out of a breach of a condition of his student visa.  On 28 March 2002 the applicant lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs.  On 2 May 2002 a delegate of the Minister refused to grant that visa and on 2 May 2002 he sought review of the decision by the Refugee Review Tribunal.  The Tribunal arranged for the applicant to attend upon it at interview and a hearing was conducted on 14 June 2002.  The Tribunal determined to affirm the decision of the delegate not to grant a protection visa on 16 August 2002 and handed the decision down on 10 September 2002.

2. The applicant claimed to have a well founded fear of persecution for the convention reason of religion.  He was born a Muslim to an observant family in Bangladesh.  He claimed before the Tribunal to have converted to the Russian Orthodox faith to which he had been introduced by his partner, a woman of Ukrainian origin and Nepalese nationality.  The applicant claimed that when he returned to Bangladesh in November 2001 he was verbally and physically attacked by his conservative family after he had told them of his intention to convert.  The applicant claimed that he could not return to his home village because of his parent’s attitude towards his conversion and proposed marriage which had brought shame upon his family.

   “This led the Tribunal to raise the question of relocation elsewhere within Bangladesh.  Assuming for the purpose of this part of the discussion that the problem with his family was real the applicant gave no reason why he could not settle away from his home village apart from a preference for living where his family had lived for generations.  This preference was obviously sidelined the longer the applicant stayed in Australia.  He seemed unwilling to consider priorities such as potential survival free from persecution in other parts of Bangladesh over the pleasure of living where he usually lived.  The applicant gave no satisfactory reason why relocation elsewhere in Bangladesh was not a safe option.” [CB 102]

3. In a letter dated 15 April 2002 from RACS [his migration agents] it was submitted that the applicant had a well founded fear of persecution for the following reasons:

   1The applicant has converted from his Muslim faith to the Russian Orthodox faith.

   2Given this conversion his family has reacted extremely strongly and threatened his life.

   3The authorities in Bangladesh do not protect Christians.

   4The authorities in Bangladesh are corrupt and at times active participants in persecutory behaviour, therefore the applicant cannot seek their protection.

   5The applicant cannot relocate internally in Bangladesh. [CB 32].

4. At [CB 82] RACS wrote again to the Tribunal dealing with the applicant’s ability to return to Bangladesh pointing out that the country had a small Christian minority which had been subject to persecution over a period of time.  It referred to an Amnesty International report on Bangladesh for 2002 and submitted that this was clear evidence that the authorities were not able to protect people who are members of religious minorities.  RACS submitted that this was indicative of the situation throughout the country and that the applicant would not be able to relocate to any area away from his home in safety.  RACS submitted to the Tribunal that the applicant was in the same situation as Ms Khawar (Minister for Immigration v Khawar [2002] HCA 140) “by being the victim of discriminatory inactivity of the state authorities in not responding to the violence of non state actors.”

5. The Tribunal set out upon its task by considering firstly whether the applicant had indeed converted to Christianity through the Russian Orthodox Church.  The Tribunal came to the conclusion that the applicant’s claims in this regard were not credible.  It also found that such conversion, if one had taken place, had been done for reasons of expediency and not because the applicant had found true religious enlightenment.  At [CB 110] the Tribunal says:

   “The Tribunal notes that the applicant has provided only verbal evidence of his “conversion”.  He has provided no evidence of contact with or education by the Russian Orthodox Church.  To be sure, it might be hard for him to provide this if his conversion has taken place since he was detained, but given the claim that this is supposed to have been a long and thought out process of conversion, his adviser and partner, who are not disadvantaged by detention, could have provided some shred of evidence of his contact with the church and of its induction of him into Russian Orthodoxy, even if it fell short of actual certification of baptism.” (emphasis added)

   Mr Dobbie, who appeared on behalf of the applicant, made much of this passage because he was able to show that in the applicant’s first statement found at [CB 27] he stated:

   “I converted to the Orthodox Russian church on Saturday 16 March 2002.  My first name Nikola was chosen by Margarita and myself after Saint Nikola who I particularly admired.”

   He was able to point to the paragraph in the RACS letter of 15 April 2002 found at [CB 36]:

   “Although the applicant has only recently converted to the Russian Orthodox faith, he advised that he has been considering this issue for a very long time. … When he found himself in detention at Villawood his de facto suggested that he now could convert as he had no other demands on his time. He agreed and did so on 16 March 2002.”

   He referred to a letter dated 24 April 2002 from RACS to the onshore protection section attaching a reference from Reverend Serafim Gan of the Russian Orthodox Church.   This letter dated April 2002 says:

   “I am writing this letter of reference on behalf of the applicant.

   
   

   I have known the applicant for several months now. [CB 38] [CB 39].

   He points to the reference to the conversions in the reasons of the delegate found at [CB 46] and finally he points to the photocopy certificate of baptism found at [CB 41].

6. Because of the manner in which the Tribunal dealt with the applicant’s conversion in its written reasons, sometimes putting the word in inverted commas and sometimes not, I was first attracted to the view that it was expressing an opinion that the applicant’s actual conversion had not been a real spiritual experience.  But after further consideration and listening to the submissions of Mr Dobbie I cannot say that that is the case.  It would seem from the remarks made by the Tribunal concerning the physical evidence I have quoted that when preparing its reasons for decision the Tribunal did not take into account the documentary matters that I have just recited.

7. If the Tribunal had rested upon these findings and concluded that the applicant would not have a well founded fear of persecution for reason of religion because if he was returned to Bangladesh he would do so as a Muslim, then I would have no hesitation in finding that it had failed to take into account relevant material and thus committed a jurisdictional error Craig v South Australia (1995) 184 CLR 163, Minister for Immigration v Yusuf (2001) 206 CLR 323. However, as Mr Smith argued, that is not what occurred. At [CB 113-114] the Tribunal makes further important findings:

   “Supposing for a moment that the Applicant did offend his family in the manner and context he claims, and the Tribunal does not accept on the evidence before it that he did, he has failed to demonstrate that their outburst of anger would necessarily give rise to a real chance of persecution in Bangladesh irrespective of where he lived.  He failed to satisfy the Tribunal that the episode, as he described it, would have been heard of outside the family.  He also failed to satisfy the Tribunal that were his so-called community to find out about the episode, or his intention to marry a Christian or join her church, any more than an element of conservatives within it would have serious concern, let alone persecute him over the matter.  Meanwhile, in arguing why he could not reside anywhere else in Bangladesh, the applicant claimed ties to his ancestral village.  In doing this he localised the problem, and although he claimed that it would not take long for strangers in the big cities to suspect that he had converted from Islam to Christianity were he and his wife to settle there, the evidence before the Tribunal does not satisfy it that this would lead to persecution.  In fact, two sources (DFAT CIR 171/99 and DFAT cable DA22281) satisfy the Tribunal that the chance of the Applicant facing harm over his relationship with a Christian, even if he converts, is remote because the Muslims of Bangladesh generally do not care.  Of course, if one converts from Islam to Christianity, he or she might face a different experience within the particular family into which he or she were born, due to parents tending to be less tolerant when their own children are affected, and one might be ostracised from the family altogether.  However, that in itself is not persecution, and the Tribunal would conclude that the applicant has the choice of living away from the anger and ostracism inside Bangladesh.  He would be no less ostracised by his family if he were permitted to remain in Australia and yet he purports to be prepared to live with that prospect simply by seeking to remain herein the claimed circumstances.

   The Tribunal does not accept that the Applicant would face a real chance of being persecuted by society at large in Bangladesh merely were it to become known or suspected that he was or had become a Christian.  The evidence that he has provided to support such a position is not reliable.  The Tribunal has relied on other material adverse to the Applicant's claims, which it has cited and discussed in the preceding section of this document.

   To sum up, the Tribunal is not satisfied that the Applicant is a reliable witness in the present matter.  It does not accept that he has converted to Christianity or that, in the event of his having discussed the issue with his family at any time, it has caused the trouble he claims it has caused.  However, were it mistaken in relation to the claimed November 2001 episode at the family home, and it is confident that it is not, the Tribunal would still be unsatisfied that the Applicant faces a real chance of persecution in Bangladesh, even if he were linked in people’s minds with his intended spouse and even if he had already converted to Christianity. (emphasis added)

   The Tribunal is not satisfied that the Applicant faces a real chance of Convention-related persecution in Bangladesh.  His claimed fears of such persecution are not well-founded.  He is not a refugee.”

8. Mr Smith argues that the underlined words are the real issue in this case and provided the Tribunal came to the conclusion which it did on the basis of available evidence then the decision should stand notwithstanding any errors that it made earlier concerning the applicant’s conversion. The applicant argues that the Tribunal could not have come to that conclusion from the evidence available to it.  He also argues that in any event the Tribunal did not consider the question of the safety of the applicant as an apostate.  I will deal with the second claim first as it is simpler. 

9. The Tribunal quotes at [CB 103] from the DFAT Country Information Report 171/99 which includes a phrase that:

   “The majority of Bangladeshi Muslims practice a tolerant form of Islam.”

   It goes on to say:

   “As far as the Tribunal has been able to glean, “apostasy” is not illegal in Bangladesh, although it is considered in law to be adequate grounds for dissolving a marriage (reference given).  The Tribunal could find no evidence of such harassment of converts from Islam to Christianity as would amount to persecution, let alone any from which a person could not seek protection under the law.”

   The Tribunal then discusses calls for the execution of infidel or apostate writers and journalists and the banning of un-Islamic NGOs but says that they were from a small portion of the population and the calls go unheeded.  It then refers to attacks on Christian institutions and makes references to a Reuters report of 31 October 2001 following an incident in Pakistan.

10. The DFAT report 171/99 is reproduced in detail at [CB 146-147].  It is in a familiar form which asks a number of questions to which the Australian post responds.  It refers to claims based upon marriages between couples of mixed religion and to “Muslim men who have converted to Hinduism to marry Hindu women and “Muslim men married to Christian women”.  The response to these questions is anodyne and contains the quotation found above concerning Bangladeshi Muslims practising a tolerant form of Islam.  The applicant argues that this DFAT report is not to the point in the applicant’s case because his client would have to be considered as a Muslim who had converted to Christianity and that situation had not been covered.  I think that the Tribunal would have been entitled to infer from the responses concerning Muslims who had converted to Hinduism in order to marry a similar situation in the case of Muslims who had converted to Christianity.  I also note the Tribunal’s inability to find any information concerning Muslims converting to Christianity and marrying, so that it could not be said that the Tribunal did not consider this particular problem.  [CB 103]

11. Mr Dobbie’s attack upon the country information cited by the Tribunal in regard to the possibility of the applicant facing harm is based upon what he claims is selective citing of the material.  At [CB 102] the Tribunal says:

    “The Tribunal has regard for information reported in DFAT cable DA22281 dated 14 May 1990

    A REPORT APPEARED IN A BENGALI DAILY, THE DAINIK MEILLAT ON 6 MAY 1990.  HEADLINED “CONVERSION TO CHRISTIANITY IN BANGLADESH” IT ALLEGED THAT “CONVERSION TO CHRISTIANITY IN BANGLADESH IS FLOURISHING.”

    I accept Mr Dobbie’s submission that a full reading of that DFAT report shows that the headline referred to was part of a headline which was in fact highly anti Christian and the reference to conversion flourishing was a reference to a fear being held by certain persons of the affects of such an occurrence.  If the whole of that report is read it will be seen that its importance for this and other cases is found in the comment:

    19  “Undeniably, members of the Christian minority in Bangladesh are victims of discriminatory practices.  They are not always free to practice their religion without interference and their justifiable complaints are rarely investigated.  This observation, however, cannot be extrapolated to support the notion of an overt government-instigated program of persecution, although the government is undoubtedly suspicious of the Christian community.  Christians are one of several groups in Bangladesh society who, by virtue of their status as a fringe-dwelling minority suffer more in the fierce competition for limited resources.  Their position can perhaps be differentiated from other religious minorities because, in dealing with the national and expatriate Christian population, GOB is forced to balance the competing dependencies on (and expectations of) regional Islamic nations and the largely western donor countries who, to varying degrees, profess adherence to Christian beliefs.”

12. I am not prepared to say that the Tribunal did not, in coming to the conclusion which it did at [CB 113-114], read the whole of this document.  I would also point out that even if the article which was reproduced at [CB 102] was anti-Christian that does not necessarily mean that the allegation made in it that Christianity was flourishing was untrue.  The extract from the report could have been used by the Tribunal merely to remind itself that despite opposition to Christian beliefs they were able to exist within Bangladesh.

13. Mr Dobbie also criticises the Tribunal’s reliance upon the Reuters report.  The full text of that report is found at [CB 151] and it refers to the tightening of security at churches across Bangladesh following an incident in Pakistan which killed sixteen people.  Mr Dobbie’s complaints about this document are that it was a report of the statement by a Minister and not an indication of actual action.  I beg to differ.  The Minister is saying:

    “Security has been tightened at churches across the country and police have been asked to keep a close eye on the Christian’s safety.”

    This seems to me to be an indication of what has occurred rather than a pious hope of what might occur as suggested inferentially by Mr Dobbie.

14. In my view the Tribunal was entitled to rely on these three pieces of evidence to come to its conclusions regarding the applicant’s fear of harm if he returned to Bangladesh.  The evidence from these documents is sufficient for it to come to the conclusion that there was no objective fear for a person in the position that the applicant claimed to be, namely a Muslim who had converted to Russian Orthodox Christianity and married a woman of the same religion.  Once the Tribunal came to this conclusion based upon available evidence the doubts it had about the applicant’s conversion become irrelevant. 

15. In these circumstances I cannot find grounds upon which the decision of this Tribunal can be reviewed.  I must dismiss the application and order that the applicant pay the respondent’s costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: