SZBEU v Minister for Immigration

[2005] FMCA 642

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBEU v MINISTER FOR IMMIGRATION [2005] FMCA 642

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – whether the RRT failed to consider an element of the applicant’s claims considered – whether the RRT failed to deal with corroborative evidence supporting the applicant’s claims considered – whether the RRT erred in dealing with the applicant’s claim of being bashed at political processions considered – the RRT constructively failed to consider that claim because it failed to resolve whether the applicant had been engaged in political activity that should be accepted as legitimate according to Australian or international standards.

Migration Act 1958 (Cth), s.91R

Appellant S395/2002 v Minister for Immigration (2003) 203 ALR 112
Applicant WAEE v Minister for Immigration [2003] FCAFC 184
Minister for Immigration v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration [2004] FCAFC 263
NAJO v Minister for Immigration [2004] FCA 912
Re Minister for Immigration; Ex parte S20/2002 (2003) 198 ALR 49
WAEE v Minister for Immigration (2003) 75 ALD 630
WAGU v Minister for Immigration [2003] FCA 912
WAIJ v Minister for Immigration (2004) 80 ALD 568

Applicant: SZBEU

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1601 of 2003

Judgment of: Driver FM

Hearing date: 13 May 2005

Delivered at: Sydney

Delivered on: 13 May 2005

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Counsel for the Respondent: Ms S McNaughton

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. A writ of certiorari shall issue removing the record of the Refugee Review Tribunal into this Court for the purposes of quashing the decision of the Refugee Review Tribunal handed down on 17 July 2003.

2. A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the application before it according to law.

3. The Minister is to pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $1,800, noting that the Minister may set off against that costs order a previous costs order made in the Minister’s favour on 28 February 2005.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1601 of 2003

SZBEU

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) completed on 23 June 2003 and handed down on 17 July 2003.  The RRT affirmed a decision of the delegate of the respondent Minister not to grant the applicant a protection visa.   Relevant background facts and circumstances are adequately set out in written submissions prepared on behalf of the Minister by Ms McNaughton.  I adopt by way of background for the purposes of this judgment paragraphs 1 to 4, as well as paragraphs 7 to 16 of those written submissions:

   The applicant, a citizen of Bangladesh, arrived in Australia on 1 October 2001 from Bangladesh[1].  He arrived under his own passport issued in Dhaka on 25 January 2001[2], on a visitor’s visa issued in Dhaka on 2 September 2001[3].  He is a Moslem.[4]

   [1] court book, pages 14 & 31

   [2] court book, page 14

   [3] court book, pages 14,15 & 31

   [4] court book, page 13

   On 30 October 2001,  the applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) pursuant to the Migration Act 1958 (Cth) (“the Migration Act”)[5].  A delegate of the respondent refused to grant a protection visa on 26 March 2002[6].  The applicant applied to the RRT for a review of that decision on 14 April 2002[7], and on 23 June 2003, the RRT affirmed the decision not to grant the applicant a protection visa. The decision was formally handed down on 17 July 2003.[8]

   [5] court book, pages 3 - 31

   [6] court book, pages 63-70

   [7] court book, pages 71-74

   [8] court book, pages 93-113

   The applicant filed an initial application for review on 13 August 2003. On 24 August 2004 an application for summary dismissal was filed by the respondent, on the basis that no reasonable cause of action was disclosed. The motion came before Driver FM on 25 October 2004. The applicant did not appear and the application for judicial review was dismissed with costs.

   On 28 February 2005, the applicant was successful in having those orders set aside, and leave was granted to file an amended application.

   The applicant set out his original claims for refugee status in a statutory declaration attached to his application[9]. Further submissions were made on his behalf by his adviser Md. Sirajul Haque[10] (together with copies of newspaper articles[11]) in response to a letter of the delegate dated 17 January 2002[12]. The adviser also forwarded additional material to the Tribunal: on 8 February 2003, a book entitled “Rape of a Nation” by the Bangladesh Awami League[13]; on 15 May 2003, “a certified copy of a letter issued by Mr Raziuddin Ahmed Raju a reputed leader of the Awami League and the member of the parliament”[14]; and on 19 May 2003 some further written submissions[15].

   [9] court book, pages 26-27

   [10] court book, pages 36-8

   [11] court book, pages 39-62

   [12] court book, pages 34-5

   [13] Covering letter only, court book, page 80

   [14] court book, pages 82-3

   [15] court book, pages 83-87

   The RRT summarised the applicant’s written claims at pages 97-8. Essentially the written claims involved the applicant’s increasing level of political activity on behalf of the Awami League, culminating in his election as vice-president of the Thana committee in 2000. The applicant claimed that during the 2001 election campaign an Awami League activist was killed in front of the police by BNP supporters, and he was advised to leave the country by his father. In the meantime a number of false cases were filed against the applicant. At page 98.2 the RRT refers to the copy of the letter “purportedly” sent by a Member of Parliament belonging to the Awami League.

   The RRT went on to summarise the applicant’s oral evidence at the hearing on 20 May 2003 at pages 98-9.  It confirmed that the applicant had lived in the family home for the 10 years before arriving in Australia. The RRT recorded that the applicant “struggled” to give answers to questions relating to the organisation and structure of the Awami League. At page 99.6ff, for the first time, it is recorded that the applicant outlined an incident in February 2001 following a procession held to support the Awami League and a subsequent meeting of the Thana committee. The applicant claimed that whilst he was away from his home, BNP supporters had come to his home and threatened to kill him unless he gave up the Awami League and stopped attending processions.  He went on to state that the local BNP supporters offered to organize the applicant’s membership of the party, and told him they would kill him if he did not join.

   At page 99.9, the RRT recorded the applicant’s claim at the hearing that the BNP had lodged false firearms cases against him one day before the October 2001 elections. These charges were still pending. It also noted that nothing further had happened following the February 2001 incident although he had received beatings at a number of processions[16].

   The RRT’s decision

   The RRT methodically set out the history of the applicant’s claims and the evidence given by the applicant during the course of the hearing.  At page 109.3, it noted that it had “given full consideration” to the applicant’s claims in his application, his oral evidence, his adviser’s written submission, case law and country information, and “documents lodged by the applicant in support of his claims”. Whilst it accepted that the applicant was a supporter and member of the Awami League, it did not accept that the applicant was an official of the Awami League.[17]  Because the applicant’s evidence regarding the Awami League was vague and generalized, the RRT did not accept that he had had great success in motivating people to join this party and did not believe that the BNP had become upset with him because of this. [18]

   The RRT considered the applicant’s claims regarding his vulnerability to arrest and harassment arising from his involvement with the Awami League if he returned to Bangladesh.  The RRT considered the independent information regarding the current situation in Bangladesh.  It noted that the independent information showed only senior leaders of the Awami League had suffered harassment and detention since the BNP have come to power, and that there was no evidence of targeted discrimination  against other Awami League members. The party itself operated legally and openly. Accordingly, given the RRT’s finding that the applicant’s involvement was only at a very low level, it was not satisfied the applicant would suffer mistreatment by members of the BNP or by the present government.[19]

   In noting that the applicant claimed he had been bashed at a number of processions, it did not accept that the harm involved persecutory conduct, but rather political violence had become a “routine feature of the political process in Bangladesh”[20].  There was no evidence that the BNP government condoned the use of violence at political meetings or processions, and it was satisfied that the “essential and significant reason for the harm caused was because of his participation in a street procession where it was highly likely that violence would take place.”[21]

   The RRT considered the applicant’s claims regarding false charges allegedly laid against him.  It did not accept this claim on the basis that he was able to leave Bangladesh without restriction. Further, even if false charges had been laid, the RRT accepted country information regarding the avenues of appeal upon which the applicant could rely to resist those charges.[22]

   The RRT also found that the applicant could relocate if he wished.

   In conclusion, the RRT found that it was not satisfied that there was a real chance that the applicant would face persecution for reasons of his political opinion should he return to Bangladesh.

   [16] court book, page 100.2

   [17] court book, page 109.5

   [18] court book, pages 109-110

   [19] court book, page 110.9

   [20] court book, page 111.3

   [21] court book, page 111.5

   [22] court book, page 111

2. The only evidence I have before me is the book of relevant documents filed on 31 October 2003.  I do have the benefit of written submissions by both Ms McNaughton, for the Minister, and Mr Zipser, for the applicant.  For the purposes of these proceedings, the applicant relies upon his amended application filed in court on 28 February 2005.  The grounds in the application are adequately summarised in paragraph 5 of Ms McNaughton's written submissions which I also adopt for the purposes of this judgment:

   The grounds of the application relied on by the applicant can be summarised as follows:

   (1)The RRT failed to deal with an aspect or integer of the applicant’s claims;

   (2)The RRT ignored or failed to deal with corroborative evidence; and

   (3)The RRT made an error of law in relation to its findings about the applicant’s involvement in [political] violence.

3. As Mr Zipser notes in his written submissions, the first issue is whether the RRT erred in failing to consider an element of integer of the applicant's claims which Mr Zipser describes as the death threats issue.  The relevant contentions are set out in paragraphs 9 to 12 of Mr Zipser's written submissions:

   The applicant made claims to the RRT of harm he feared from a variety of sources as follows:

   a)The applicant claimed that “a number of false cases were filed against” him (court book, pages 97.7, 99.10).

   b)The applicant claimed that after a meeting in February 2001 “BNP supporters had come to his home and threatened to kill him unless he gave up the Awami League and stopped attending processions” (court book, page 99.7).

   c)The applicant claimed that the local BNP supporters tried to persuade the applicant to defect from the Awami League to the BNP and “they told him they would kill him if he did not join” (court book, page 99.10).

   d)The applicant claimed “he had received beatings at a number of processions” (court book, page 100.2).

   The RRT made findings responding to the applicant’s claims set out in paragraphs 9(a), (c) and (d).  However, the RRT did not make a finding responding to the applicant’s claim set out in paragraph 9(b).  Specifically, the closest finding of the RRT is set out at court book, pages 109.7-110.1 as follows:

   The Tribunal does not accept that the applicant had great success in motivating people to become members of the  Awami League and that the BNP became upset with him because of his successes … He claims that he was bashed at some processions without giving details.  Other than this very generalised allegation of harm the applicant did not claim any other specific mistreatment at the hands of the BNP although he claimed that members and supporters of the BNP threatened him with harm from time to time.  He claimed that members of the BNP demanded that he join the BNP.  The Tribunal accepts that the applicant may have been involved in some political rivalries with members of the BNP, however does not accept that BNP members threatened him with harm if he did not join the BNP.

   The above paragraph responds to the applicant’s claim set out in paragraph 9(c) above.  Hence the RRT rejected the applicant’s claim “that BNP members threatened him with harm if he did not join the BNP”.  However, the above paragraph does not respond to the applicant’s separate claim in paragraph 9(b).

   Where the RRT fails to consider a claim made by the applicant, it falls into jurisdictional error:  see for example NABE v Minister for Immigration [2004] FCAFC 263 at [55] and [63] and WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]. Hence, the RRT fell into jurisdictional error in the present case.

4. I accept that at page 99 of the court book the RRT referred to two separate threats.  The presiding member relevantly said:

   After the procession all 52 of the Thana Committee met to discuss the events at the procession.  The applicant left after the meeting but discovered when he went home that BNP supporters had come to his home and threatened to kill him unless he gave up the Awami League and stopped attending processions.  He was at the Awami League office when they came for him.  He claims that the BNP didn’t want any prospective leaders of the Awami League to develop.

5. In the next paragraph the presiding member continues:

   The Tribunal asked the applicant why he had been targeted out of 52 members of the Thana Committee.  He claimed that he wasn't the only person to receive death threats.  He claims that he had been very successful in getting members of the public to support the Awami League however after the 2001 elections many people left the Awami League and joined the BNP.  The local BNP supporters offered to organise the applicant's membership of the party.  They told him they would kill him if he did not join.

6. The parties agree that the RRT made a relevant finding in relation to at least one of these claims on pages 109-110 of the court book.  The presiding member relevantly says:

   The Tribunal does not accept that the applicant was an official of the Awami League.  His evidence was vague and generalised.  The applicant knew little about the organisation and policies of the Awami League.  The Tribunal would have expected that if the applicant had been a party official he would have had a much greater knowledge of party organisation and policies than displayed at hearing. 

   The Tribunal does not accept that the applicant had great success in motivating people to become members of the Awami League and that the BNP became upset with him because of his successes.  He could not explain how he was able to motivate people nor was he able to give much information about the Awami League.  He also told the Tribunal that he spent a large amount of his time helping in his family business.  He claims that he was bashed at some processions without giving details.  Other than this very generalised allegation of harm the applicant did not claim any other specific mistreatment at the hands of the BNP although he claimed that members and supporters of the BNP threatened him with harm from time to time.  He claimed that members of the BNP demanded that he join the BNP.  The Tribunal accepts that the applicant may have been involved in some political rivalries with members of the BNP however does not accept that BNP members threatened him with harm if he did not join the BNP.

7. Ms McNaughton deals with this first ground of the applicant's submissions in paragraphs 19-22 of her written submissions:

   The first ground relied upon by the applicant is that the RRT failed to make a finding in relation to the claim that “BNP supporters had come to his home and threatened to kill him unless he gave up the Awami League and stopped attending processions” (court book, page 99.7).   The applicant claims that this indicates a failure to deal with an aspect or integer of the applicant’s claims.

   The respondent contends that this ground must be rejected.  At court book, pages 109.7-110.1, the RRT set out that it did not accept that the BNP had become upset with him because of his successes in recruiting people to the Awami League, and clearly set out the reasons for this finding.  In making this general finding, the RRT implicitly rejected the claim set out at court book, page 99.7.

   The respondent contends that this general finding is a classic example of ‘a finding at a higher level of generality than the question of specific incidents’ referred to by McHugh, Gummow and Hayne JJ  in Minister for Immigration v  Yusuf (2001) 206 CLR 323 at [91] referred to by the Court in Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [50]. The passage at [47] of WAEE is apposite:

   The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.

   In any event, if one examines the detailed findings made by the RRT, whilst the RRT did not specifically mention the precise words used at court book, page 99.7 in its findings and reasons at court book, pages 109 -100, it did expressly reject the claim that “BNP members threatened him with harm if he did not join the BNP”.  If one then turns to page 99 where the RRT first set out this claim, it can readily be seen that this threat was made during the incident which was claimed to have occurred following the February 2001 procession. That is, the threat to kill the applicant if he did not join the BNP, was made on the same occasion as the threat to kill the applicant unless he gave up the Awami League.  Furthermore, logically, the two threats are in reality two aspects of the one threat given that one would normally have to leave the old party before joining the new one. Thus, far from being a separate integer, the claim regarding the threat to kill the applicant unless he gave up the Awami League is in reality the ‘other side of the coin’ of the threat to kill the applicant unless he joined the BNP. 

8. Essentially, I agree with her.  In my view, the reasoning of the presiding member sufficiently clearly indicates that she was intending to deal not only with the threat to kill if the applicant would not join the BNP but also with the threat to kill if the applicant would not cease his activities on behalf of the Awami League. 

1. In addition, it is in my view material that the second of the threats to kill referred to by the presiding member on page 99 of the court book should be regarded as the more serious of the two threats.  This was an asserted threat to kill if the applicant did not change his political allegiance.  In other words, the applicant asserted that he was being asked not only to give up his allegiance to the Awami League but to switch his allegiance to the Awami League's political opponents.  The other threat was asserted to be a threat to kill if the applicant simply did not give up his allegiance to the Awami League.  In my view, a logical interpretation of the presiding member's reasons is that the more serious threat was rejected and that necessarily carried with it the less serious threat.  I reject the applicant's first contention of jurisdictional error.

2. The second issue is what Mr Zipser describes as the corroborative evidence issue.  This is dealt with in paragraphs 13 to 17 of Mr Zipser's written submissions:

   The applicant submitted to the RRT (see court book, page 82) a copy of a letter which on its face:

   a)was written by  member of the Bangladesh Parliament;

   b)stated that the applicant, who was personally known to the author, “was a political worker of Bangladesh Awami League”;

   c)stated that the applicant “directly participated in all the political programs during the last government”; and

   d)opined that the applicant’s life was threatened if he returned to Bangladesh.

   The letter, if it was genuine, corroborated aspects of the applicant’s claims.

   The RRT, while it referred to the letter in the section of its decision titled “Claims and Evidence” (court book, page 98.2), did not refer to the letter in the section of its decision titled “Findings and Reasons”.

   In WAIJ v Minister for Immigration (2004) 80 ALD 568 at [6]-[27] Lee and Moore JJ held that the RRT fell into jurisdictional error because, while it referred to material submitted by the applicant as corroborative of his claim, it did not actually consider the material. Lee and Moore JJ stated:

   The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents "do not overcome the problems I have with the applicant’s evidence".

   Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).

   In the present case the RRT fell into jurisdictional error on this basis.

3. The issue relates to an open letter which appears twice in the court book, but which I identify at page 88 of the court book. That is a document headed, “To Whom It May Concern” and purportedly signed by a Bangladesh Parliamentarian.  The document purports to certify that the applicant is personally known to the Parliamentarian, that he was a political worker in Bangladesh with the Awami League, that his father is or was a freedom fighter who fought in the National War of Liberation in 1971 against Pakistan and that the applicant participated in the political programs during the last Awami League Government.  The author ventures the opinion that for that reason the applicant's life was under threat at the time the document was prepared and that the author had advised the applicant not to return to Bangladesh to engage in politics.  The author asserts that the applicant faced a risk of political persecution.

4. Ms McNaughton deals with this second aspect of the applicant's claims in paragraphs 23 to 25 of her written submissions:

   The second ground relied on by the applicant is that the RRT ignored the letter purportedly from the Member of Parliament in finding that the applicant was not an official of the Awami League and this his involvement in politics was very low.

   The respondent contends that this ground should be rejected.  First of all, it should be noted that the letter (at court book, page 82) does not state that the applicant was an ‘official’ of the Awami League nor that he had a high profile. Rather, it states he was a ‘political worker’ who ‘directly participate[d] [in] all the political programs during the last government’.  Secondly, the RRT did not ignore the letter.  Under the heading ‘Findings and Reasons’, at court book, page 109.4 the RRT explicitly stated that it had considered a number of items, including “documents lodged by the applicant in support of his claims”.  This sentence clearly contemplated the letter in question.

   Thirdly, as stated by French J in WAGU v Minister for Immigration [2003] FCA 912 at [34], referred to by Moore J in NAJO v Minister for Immigration [2004] FCA 912 at [29]:

   Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility.

   In the course of his judgment in WAGU, French J also cited a passage from the High Court judgement in Re Minister for Immigration; Ex parte S20/2002 (2003) 198 ALR 49 per McHugh and Gummow JJ at 70 [49]: “It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party”. Such was the situation here. That is, having made an adverse finding as to the applicant’s credibility in relation to his claim of being a high profile Awami League official, the so-called ‘corroborative evidence’ could not ‘undo’ that finding. Indeed, the RRT’s treatment of the document can indeed be seen as a subset of the situation discussed in WAEE: “it is subsumed in findings of greater generality.”

5. Again, essentially I agree with her. This is not a case of the RRT rejecting a document as a fabrication.  Neither is it a case of the RRT declining to attach any weight to a document.  In my view, the authorities relied upon by Mr Zipser do not support the applicant's claim.

6. It appears to me that in substance all the document does is to corroborate the applicant's claim of political involvement with the Awami League. The presiding member asserts on page 109 of the court book that she has taken into account all of the documents lodged by the applicant in support of his claims. I have no reason to disbelieve her.  Further, in the immediately following paragraph the presiding member states:

   The Tribunal accepts that the applicant was a supporter and member of the Awami League. The Tribunal accepts that the applicant may have helped the local Awami League candidate in the 1996 election campaign. 

7. In my view, what the presiding member is here doing is adopting the primary assertions made in the document appearing on page 88 of the court book.  It is true that the author of that document ventures an opinion concerning the threat confronting the applicant should he return to Bangladesh and resume his political activities.  The conclusions reached by the presiding member are inconsistent with that opinion.  However, the opinion is expressed in extremely general terms and, in my view, was not corroborative evidence of the kind that required specific attention by the presiding member in her reasons.

8. The third ground advanced by Mr Zipser on behalf of the applicant is, in my view, more forceful. This is what Mr Zipser describes as the Convention nexus issue.  He deals with it in paragraphs 18-24 of his written submissions:

   The RRT accepted that the applicant may have been bashed at a number of processions or demonstrations.  However, the RRT held that:

   a)“harm caused to the applicant at political meetings or demonstrations” did not “involve persecutory conduct by members of the BNP or the BNP government”(court book, page 111.1); and

   b)“if the applicant was attacked and injured as alleged, the essential and significant reason for the harm caused was because of his participation in a street procession where it was highly likely that violence would take place” (court book, page 111.4).

   The RRT made these findings on the basis that:

   a)“political violence between members of the main political parties resulting in civil strife has become a routine feature of the political process in Bangladesh”; (court book, page 111.2)

   b)“physical confrontations between party members are a fact of life in Bangladesh and affect all the main political parties”; (court book, page 111.3) and

   c)“those who take part in such demonstrations are well aware of the risks of violence” (court book, page 111.3)

   The country information before the RRT indicated that members of political parties attacked members of other political parties because of the political party in which they were involved or for which they stood.  In this sense, the attacks were for reason of political opinion.

   As indicated by paragraph 18(a), the RRT appears to have reasoned that where there is political violence and it is routine, because the violence is routine it is not Convention based.  This reasoning is not correct.

   As indicated by paragraph 18(b), the RRT appeared to have reasoned that where there are physical confrontations and they affect all the main political parties, because the confrontations affect all the main political parties they are not Convention based.  This reasoning is not correct.

   As indicated by paragraph 18(c) above, the RRT appears to have reasoned that where a person is exposed to a risk of violence but the person is well aware of the risk, because the person is well aware of the risk the violence is not Convention based.  This reasoning is not correct.

   For the above reasons, the RRT fell into jurisdictional error in making the findings set out in paragraph 17 above.

9. Ms McNaughton responds in paragraphs 26-29 of her written submissions:

   The third ground relied on by the applicant is that the RRT made an error of law in finding that because political violence had become a routine feature of the political process, and those who take part in demonstrations are aware of the risks of violence, it therefore followed that the harm was not suffered for a Convention reason.

   The respondent contends that this ground should also be rejected. At page 95.4, the RRT correctly referred to the law relating to the definition of ‘persecution’.  Section 91R(1) of the Act provides that persecution for one or more of the Convention reasons can only be found if:

   a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

   b)the persecution involves serious harm to the person; and

   c)the persecution involves systematic and discriminatory conduct.

   The RRT relied on several matters set out at page 111 in concluding that the violence was not persecutory namely:

   ·it was a routine feature of the political process;

   ·both parties have engaged in it;

   ·attacks by party members on other party members are common;

   ·violence affects all the main political parties;

   ·all parties employ armed cadres to wage battle against opposition groups;

   ·those who take part are well aware of the risks of violence;

   ·political workers who engage in legitimate political activities usually have little or nothing to fear from rival political groups;

   ·there is no evidence that the use of violence at political meets or processions is condoned by the BNP government.

   In relying on these matters, it is clear that the RRT’s finding of non-persecutory violence was amply justified. It was especially entitled to conclude from the reasons it set out that the violence was not essentially and significantly for a Convention reason (s91R(1)(a)), and it was not discriminatory (s91R(1)(c)).

10. The issue relates to an element of the applicant's claims that the presiding member treated as if it was true.

11. The applicant claimed to have been bashed at a number of processions conducted by the Awami League. The presiding member dealt with this aspect of the applicant's claims on page 111 of the court book in the following way:

    The applicant claims that he has been bashed at a number of processions.  The Tribunal does not accept that harm caused to the applicant at political meetings or demonstrations involved persecutory conduct by members of the BNP or the BNP Government.  The independent evidence indicates that political violence between members of the main political parties resulting in civil strife has become a routine feature of the political process in Bangladesh.       Both parties have engaged in violence and intimidation and attacks by party members on other party members are common.  Political street demonstrations, strikes and physical confrontations between party members are a fact of life in Bangladesh and affect all the main political parties.  All parties employ armed cadres to wage battle against opposition groups.  Those who take part in such demonstrations are well aware of the risks of violence.  Political workers who engage in legitimate political activities usually have little or nothing to fear from rival political groups. There is also no evidence that the BNP government condones the use of violence at political meetings or processions.

12. In the next paragraph the presiding member continues:

    The Tribunal is satisfied that if the applicant was attacked and injured as alleged that the essential and significant reason for the harm caused was because of his participation in a street procession where it was highly likely that violence would take place.

13. Relevantly, on the following page the presiding member also refers to country information which indicates that Bangladeshis are free to belong to the Awami League and to express their political opinions and be involved in political activities without being victims or perpetrators of violence.  If the presiding member had clearly found, as a matter of fact, that the activities which she accepted the applicant had been engaged in which led to him being bashed were illegitimate, violent, political activities there could be no complaint with the decision, subject to considering the basis upon which it was considered that activities were illegitimate. 

14. There are some problems with this aspect of the presiding member's reasons.  The first is that there is not, in my view, a clear factual finding that the political activity engaged in by the applicant was illegitimate, violent, political activity.  There is a finding that the activity engaged in by the applicant was an activity that carried with it a high risk of violence.  That however is not the same thing as a finding that the activity was illegitimate and violent activity.

15. The second problem is that it appears to me from the presiding member's reasons that she was assessing the applicant's claim by reference to Bangladeshi standards of political behaviour.  That is, in my view, the wrong approach.  In assessing a claim of persecution and in considering whether Australia owes protection obligations to a protection visa applicant, decision makers should consider whether the claims raise fundamental issues of human rights, such as a right to engage in political activity, by reference to known international standards or, (possibly) by Australian standards, including standards in international instruments to which Australia is a party[23].  It is not the correct approach to assess such activity by reference to the standards of the country from which the applicant is seeking refuge.  That is because the standards in that country may not be consistent with the enjoyment of the fundamental human right.

    [23] for example, the International Covenant on Civil and Political Rights, article 21

16. It is true that the presiding member satisfied herself from country information that individuals in Bangladesh could become involved in politics without becoming victims or perpetrators of violence.  It is also true that the presiding member considered that certain activities in Bangladesh carried with them violent connotations.  There is, however, a marked difference between a peaceful procession that may attract violence from malicious political opponents and a violent political demonstration engaged in with the intention of provoking a physical confrontation with one's political opponents.  The presiding member in her reasons failed to grapple with such distinctions.  Further, the fact that political violence is pervasive in Bangladesh could not support a conclusion that the applicant should avoid legitimate political activity that might carry with it a risk of violence: Appellant S395/2002 v Minister for Immigration (2003) 203 ALR 112.

17. In addition, while the presiding member quite reasonably and properly found that there was no evidence that the BNP government condones the use of violence at political meetings or processions, that only went to the question of whether the violence at such meetings or processions was perpetrated or condoned by agents of the state.  It seems that it was not.  On the available information the violence perpetrated was that caused by non-state actors.  The question then for the RRT was whether effective state protection was available against such violence. Given the apparently pervasive character of the political violence referred to by the presiding member there must be some question whether effective state protection is available.

18. In my view, the errors apparent in this aspect of the presiding member's reasons should result in a finding of a constructive failure on the part of the presiding member to exercise her jurisdiction in relation to this element of the applicant's claims.

19. The presiding member went on to make a finding of relocation.  Ms McNaughton, on behalf of the Minister conceded, and I accept, that that relocation finding does not immunise the decision against jurisdictional error given that it cannot be said that the pervasive political violence referred to by the presiding member is geographically limited.

20. In these circumstances, I find that the decision of the RRT is vitiated by jurisdictional error.  The applicant should receive relief in the form of constitutional writs.  I will orders that a writ of certiorari shall issue removing the record of the RRT into this Court for the purposes of quashing the decision of the RRT handed down on 17 July 2003. 

    
    

    A writ of mandamus shall issue requiring the RRT to redetermine the application before it according to law. 

21. On the question of costs, the application having been granted, Mr Zipser seeks an order for costs fixed in the sum of $1,800, taking into account work undertaken by him since 28 February 2005.  That application was not opposed.  I agree that costs of that order have been reasonably and properly incurred on behalf of the applicant by Mr Zipser when assessed on a party and party basis. 

1. I will further order that the Minister pay the applicant's costs of and incidental to the application, which I fix in the sum of $1,800, noting that the Minister may set off against that costs order a previous costs order in the Minister's favour made on 28 February 2005.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  20 May 2005