SZBXR v Minister for Immigration
[2007] FMCA 1225
•26 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBXR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1225 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant abandoning his past political affiliation and activities but committed to supporting his brother, who remained active in politics in Bangladesh – Tribunal considering whether the applicant would be imputed with his brother’s political pinion or harmed as a family member – no well founded fear found – whether the Tribunal should have considered the risk that the applicant might be harmed for other reasons because of his brother’s political opinion considered – observations on the Convention nexus with political opinion when the opinion is not that of the person seeking protection. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.91S |
| SZDRV v Minister for Immigration [2005] FCA 926 |
| Applicant: | SZBXR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG818 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 26 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Counsel for the Respondents: | Mr J Potts |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG818 of 2007
| SZBXR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision from the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 23 January 2007 and was handed down on 13 February 2007. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. Background facts relating to the applicant's protection visa claims and the decision of the Tribunal were set out in written submissions filed on behalf of the Minister on 24 July 2007.
I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 10 of those written submissions:
The applicant is a 40 year old citizen of Bangladesh.[1] He arrived in Australia on 14 March 2002.[2] He lodged an application for a protection (Class XA) visa on 26 April 2002.[3] He claimed to fear persecution in Bangladesh on the grounds of political opinion, as an associate of the Awami League.[4]
Following the delegate’s decision on 18 June 2002, on 15 July 2002 the applicant sought review by the Tribunal.[5] On 23 June 2003 the Tribunal received a lengthy submission together with voluminous supporting material from the applicant’s advisors.[6]
The Tribunal, differently constituted, affirmed the delegate’s decision, and on 21 December 2005 that decision was quashed by order of this Court.[7]
A second Tribunal differently constituted again affirmed the delegate’s decision and again on 5 October 2006 the Court set aside that decision and remitted the matter to the Tribunal for further consideration.[8]
On 6 December 2006 the applicant appeared before a differently constituted Tribunal to give evidence and the Tribunal also received evidence from his sister.[9] He gave evidence at that hearing that he had not been involved in politics in any way since his arrival in Australia. When asked why not he claimed that he did not want to be involved, and that he was fed up with politics and he “had had enough”. He told the Tribunal that he did not intend to be involved in politics if he returned to Bangladesh. When asked why, if he did not intend to participate in political activities in future in Bangladesh, he might be at risk from political opponents, he responded that it was “because of my past activities”. He also claimed that his brother in Dhaka wanted to return to politics and that he would have to support him because he was family. The applicant was uncertain as to what political activities, if any, his brother might undertake.[10]
The Tribunal’s decision
The Tribunal accepted that the applicant had supported the Awami League before his departure from Bangladesh.[11] The Tribunal was satisfied that if the applicant returned to Bangladesh he would pursue his business interests and would have no interest in supporting any political party.[12] The Tribunal inferred that the applicant would be of no interest to non-state supporters of any of the political parties if he were returned to Bangladesh and would not be threatened or harmed by them.[13] The Tribunal concluded there was insufficient evidence to enable it to be satisfied that the applicant was facing any politically motivated charge when he left Bangladesh in 2002, and it was not satisfied that if he were to return to Bangladesh there would be any interest by the authorities in detaining or charging him on that basis.[14] The Tribunal concluded that the chance that the applicant would face any harm amounting to persecution in Bangladesh because of his past support for the Awami League was remote.[15]
The Tribunal separately considered whether the applicant might be subjected to harm amounting to persecution because of his family. The Tribunal was satisfied that the applicant had a brother who was prominent within a new political party, the BDB, and who was being targeted for harm by the BNP[16] However the applicant himself had no history of support for the BDB and any support he gave his brother in the future would in the Tribunal’s view be apolitical. The Tribunal noted that he did not express any intention of residing with his brother or otherwise linking himself closely with his brother so that he might be assumed to share his brother’s political opinion. The BDB’s power base was itself made up of ex-BNP supporters, and the applicant had made it clear he was never such a supporter. By reason of those matters the Tribunal was satisfied that he would not be assumed by outsiders to be a supporter of the BDB merely because of his brother’s role within it and, therefore, there was no real chance of him being persecuted by reason of his actual political opinion or a political opinion imputed to him.[17]
As to whether the applicant might be harmed because of his membership of his family, he had not claimed that his mother or sisters were being threatened or harmed because of their membership of the family. It had been claimed by the applicant’s sister that the younger brother, who was not a member of any political party, had been attacked. However, it was not claimed that that attack was motivated by his membership of the family and the Tribunal was not satisfied that it was. The Tribunal considered the chance that the applicant would face harm because of his membership of his family was remote.[18]
The Tribunal therefore found that the applicant did not have a well founded fear of Convention related persecution in Bangladesh.[19]
[1] court book (CB) at 12-13.
[2] CB at 14.
[3] CB at 1-55.
[4] CB at 27-34.
[5] CB at 79-82.
[6] CB at 92-430.
[7] CB at 440.
[8] CB at 480-481.
[9] CB at 511.6.
[10] CB at 515.7-516.1.
[11] CB at 521.2.
[12] CB at 521.4.
[13] CB at 522.1.
[14] CB at 522.3.
[15] CB at 522.4.
[16] CB at 523.2.
[17] CB at 523.3.
[18] CB at 523.5.
[19] CB at 525.5.
The evidence I have before me is limited to the court book filed on 3 May 2007.
These proceedings began with a show cause application filed on 12 March 2007. The applicant asserted notification of the Tribunal decision on 13 February 2007. I find that the application is filed within time. The matter came before me for the first time on 10 April 2007. I made orders for the filing of additional material and listed the matter for a preliminary hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) on 28 May 2007. On that day I ordered, pursuant to rule 45.12(1)(b) of the Federal Magistrates Court Rules that the Minister show cause why relief should not be granted in relation to ground 3 of the application filed on 12 March 2007, read in the context of paragraph 11 of the applicant's submissions filed in chambers on 25 May 2007. I incorporate in this judgment that ground:
The Second Respondent made jurisdictional error in relation to the Convention ground of “political opinion” by taking an erroneous approach in law as to the range of acts and conduct included in “political opinion” under the Convention.
I also incorporate paragraph 11 of the previous submissions:
… it is submitted that in the context of the Convention political opinion has a wider meaning. Fellow travellers in the widest sense are persons who may be imputed to have a political opinion. For example, if there is within a country persecution of persons of a particular political party, then it may be that all persons who provide any assistance whatever to that political party are also subjected for harm. The persecutors do not care what those who provide assistance believe or whether they share the opinions of those who they assist. It is their actions in assisting the political party or individual members of it which mark out the persons for harm. It is submitted that the Applicant has at least an arguable claim for jurisdictional error and that his case should proceed to a final hearing.
Both parties have taken the opportunity to file additional written submissions. Those of the applicant were filed in my chambers on 24 July 2007. I include in this judgment paragraphs 3 to 8 of those written submissions:
The RRT accepted that the Applicant had a brother who was prominent within a relatively new political party within Bangladesh known as the BDB. The RRT was further satisfied that the brother was targeted for harm by the BNP, one of the two main political parties in Bangladesh.
At CB 523 the RRT concluded that because the Applicant had himself no history of support for the BDB, any support he gave to his brother in future would be “apolitical”. The RRT further stated that it was satisfied that the Applicant would not be assumed by outsiders to be a supporter of the BDB merely because of his brother’s role within it.
Whether the support that the Applicant would offer his brother would be objectively regarded as “apolitical” in the sense that it was offered by the Applicant for familial reasons rather than reasons of political conviction is not it is submitted conclusive in relation to the issue of persecution. The Applicant’s motives may be familial, the brother may receive his support for familial reasons, and the brother’s political opponents may even perceive that the Applicant is only supporting his brother because of the sibling connection and not because he shares his brother’s political convictions.
However, this does not mean that he will not be the subject of persecution for reasons of his brother’s political opinion which will, in effect, be transferred to him. His brother’s political opponents may not care why somebody is assisting him. The mere fact that the Applicant is assisting his brother may be enough for the brother’s political opponents to also include the Applicant as a target for harm.
Those political opponents will see the Applicant as an opponent in the sense that they may perceive people as being with them or against them. The Applicant by his “apolitical” support for his brother may be seen to place himself in the group of people who the BNP (or some part of the BNP) see as being against them.
The conclusion of the RRT that it was satisfied that the Applicant would not be assumed by outsiders to be “a supporter of the BDB merely because of his brother’s role within it” begs the question. The question is whether he will be persecuted (ie harmed or targeted for harm) by reason of his support for his brother who clearly is perceived as being a prominent political player.
The Minister's written submissions relevantly deal with the issue raised by the applicant in paragraphs 15 to 22:
The essence of the applicant’s complaint is that the Tribunal asked itself the wrong question.
The applicant has submitted that the critical question was whether there was a real chance that the applicant might be harmed because he offered support to his brother.
The Tribunal clearly found that:
He later claimed, however, that he would support his Dhaka-based brother’s political activities in Bangladesh if he returned. However, he did not know what his brother’s plans were in terms of political activity, or even what political party he currently supported. That is consistent with his evidence that he was “fed up with politics”. I infer from this that his support for his brother will be limited to apolitical support, and that he has no interest in becoming actively involved in his brother’s political activities. In sum, I am satisfied that if [the applicant] returns to Bangladesh, he will pursue his business interests and that he will have no interest in supporting any political party.[20]
[20] CB at 521.4 (emphasis added).
(counsel’s emphasis retained)
The Tribunal also found that:
I am satisfied that he [the applicant] will not be assumed by outsiders to be a supporter of the BDB merely because of his brother’s role within it. Therefore there is no real chance of his being persecuted for the reason of his actual political opinion or a political opinion imputed to him.[21]
(counsel’s emphasis retained)
The Tribunal also concluded that mere membership of the family was not enough to give rise to a well-founded fear of persecution, concluding:
I consider the chance remote that [the applicant] might face harm because of his membership of his family.[22]
[21] CB at 523.3 (emphasis added).
[22] CB at 523.5.
The Tribunal’s findings involved no error of the kind asserted by the applicant.
The Tribunal found explicitly that no-one would impute the applicant with a political opinion. It made this finding after having found that any support offered by the applicant to the brother would be apolitical. In this context, the two findings viewed together must be taken to mean that the Tribunal concluded that outsiders, including the applicant’s brother’s political opponents, would clearly see that any support given by the applicant to his brother was apolitical support. The Tribunal also found that mere membership of the applicant’s family (which must be taken to include the fact that he was related to his brother), would not be enough to give rise to a real chance of harm. This finding excludes the possibility that the applicant’s brother’s political opponents might target the applicant because of his family relationship with his brother.
The applicant’s case is therefore that, despite the fact that any support that the applicant might give to his brother would be seen to be apolitical by outsiders, thereby preventing him from being imputed with his brother’s political opinion, or indeed any political opinion, the Tribunal needed to consider whether there was a real risk that he would be targeted for his apolitical support because of his brother’s political opinion. The Tribunal did not need to expressly address this question. Given the findings actually made by the Tribunal, in the Tribunal’s mind any possibility that the applicant would be targeted on account of political opinion had been completely addressed and then rejected by Tribunal. In the first respondent’s submission, the findings that the Tribunal made adequately dealt with the case advanced by the applicant, and found that there would be no risk of persecution for a Convention reason.
The issue raised is a narrow one but an important one. On its face the Refugee Convention does not exclude from consideration claims of persecution for reasons of political opinion where the political opinion is held by someone other than the person seeking protection. There is support for the proposition that a person may enjoy the protection of the Convention for reasons of political opinion where the political opinion is held, for example, by a persecutor or indeed by someone else: SZDRV v Minister for Immigration [2005] FCA 926 at [9] by Lindgren J. Indeed I have expressed a like opinion myself previously.
There is no doubt that by the time he reached the Tribunal hearing before the third Tribunal the applicant had abandoned any political opinion of his own. His fear of harm was limited to the risk he faced by giving support to his brother who was prominent in politics. The applicant's sister gave evidence that the applicant's brother had a high profile and was involved within the newly formed BDB Party. There was no error in the Tribunal's finding that the applicant did not face a well‑founded fear of harm in Bangladesh by reason of his own opinion. The applicant's complaint is that the Tribunal's consideration of the risk of harm that he faced by reason of the political opinion of his brother was inadequate. Essentially, the complaint is that the Tribunal limited that consideration to the apolitical quality of the support the applicant would render to his brother and the possibility that, by reason of that support, the applicant might be imputed with the same political opinion as his brother. The applicant's contention is that the Tribunal needed to consider whether the applicant faced a well‑founded fear of harm merely because of his support to his brother, whatever that support might be, and regardless of whether the applicant might be imputed with the same political opinion as his brother.
The Tribunal decision is set out on pages 508 to 523 of the court book. It was a apparent from the information given by the applicant to the Tribunal both in writing and orally at the hearing conducted by the Tribunal that the applicant intended to support his brother in Bangladesh because of the familial link and for no other reason. Indeed, the applicant did not know anything of his brother's current political affiliations. The evidence about that came from the applicant's sister. The Tribunal considered whether, because of the applicant's past activities or because of a political opinion imputed to him because of his membership of his family, or simply because he is a member of that family, or because of a combination of factors, there is a real chance the applicant would face treatment amounting to persecution if he returned to Bangladesh (CB 521). The presently important passages in the Tribunal's reasons are at page 523. The Tribunal said:
I am therefore satisfied that [the applicant] has a brother who is prominent within the BDB and who is being targeted for harm by the BNP, in particular a political candidate from the BNP in his area. However [the applicant] himself has no history of support for the BDB, any support he gives his brother in future will be apolitical, and he does not express any intention of residing with his brother or otherwise linking himself closely with his brother so that he might be assumed to share his brother's political opinion. Further, the BDB's power base is of ex‑BNP supporters, of which [the applicant] has made clear he was never one. Having regard to all of these matters, I am satisfied that he will not be assumed by outsiders to be a supporter of the BDB merely because of his brother's role within it. Therefore there is no real chance of his being persecuted for the reason of his actual political opinion or a political opinion imputed to him.
As to whether he might be harmed because of his membership of his family, he has not claimed that his mother or sisters are being threatened or harmed because of their membership of the family. It has been claimed by his sister that a younger brother, who is not a member of any political party, has been “attacked”. However it has not been claimed by her or [the applicant] that that attack was motivated by his membership of the family, and I cannot be satisfied that it was. On that basis, I consider the chance remote that [the applicant] might face harm because of his membership of his family.
No claims have been made that [the applicant] fears harm for any reasons other than those set out above. Therefore I find that [the applicant] does not have a well‑founded fear of Convention‑related persecution in Bangladesh.
It may be that the Tribunal went further than it should have in considering whether the applicant would be harmed simply by reason of his membership of his family, given the terms of s.91S of the Migration Act 1958 (Cth). If the Tribunal did err in that respect it was an error that assisted the applicant.
In the consideration that the Tribunal gave to the issue of political opinion there was no need for the Tribunal to consider risks that were not claimed by the applicant himself. The applicant claimed he would support his brother because of the familial link. It was apparent from the applicant's evidence that the support would be apolitical because the applicant had no continuing interest in politics himself and he was not familiar with his brother's current political opinions.
On the material before the Tribunal it was apparent that there were only two plausible risks of harm being faced by the applicant as a result of his intended support for his brother. One was that he might be imputed with the same political opinion as his brother. The other was that he might be harmed because he was a member of his brother's family. Apart from those possibilities there was no real risk that the applicant might be harmed because of any support he might give to his brother. The Tribunal considered and rejected the plausible risks of harm. There was nothing else the applicant had put forward himself that required consideration. Therefore, on the basis of the material before the Tribunal there was no need to consider other abstract or hypothetical possibilities.
I find that on the material before it the Tribunal did not err. The decision of the Tribunal is therefore a privative clause decision and the application must be dismissed. I so order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 31 July 2007
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