SZCXK v Minister for Immigration - [2005] FMCA 1707

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCXK v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1707

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in Bangladesh for reason of his race – convention nexus of harassment by hooligans – applicant claims inability to find well paid employment because of lack of citizenship.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; 477; 483A

Ram v Minister for Immigration and Ethnic Affairs and Another (1995) 57 FCR 565
Rajaratnamv Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 111
Perampalanam v Minister for Immigration & Multicultural & Indigenous Affairs (1999) 84 FCR 274

Applicant:

SZCXK

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG626 of 2004

Judgment of:

Emmett FM

Hearing date:

2 November 2005

Date of Last Submission:

2 November 2005

Delivered at:

Sydney

Delivered on:

23 November 2005

REPRESENTATION

Counsel for the Applicant:

Mr B. Zipser

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Mr J. Kettle, Sparke Helmore

ORDERS

That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
That the applications before this Court are dismissed.
That the Applicant pay the costs of the First Respondent in an amount of $4550.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG626 of 2004

SZCXK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483A of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.
The Applicant was born in Faridpur, Bangladesh on 1 January 1957.
The Applicant claims to be stateless and as such has no citizenship status.
The Applicant claims to belong to the Bihari ethnic group and claims to be a Muslim.
At the time of the Applicant’s application for a protection visa the Applicant had a wife who continued to reside in Bangladesh.
Prior to arriving in Australia the Applicant claimed he was unemployed.
The Applicant claims that he legally departed from Dhaka on 25 December 1996.
The Applicant arrived in Australia on 27 December 1996.
On 20 January 1997, the Applicant lodged an application for a protection (Class 866) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Act.
The Applicant claims protection in Australia on the grounds of his race and claimed that he fears that if he returns to Bangladesh he will be subject to continuing mistreatment, including, denial of rights of citizenship, denial of employment and subject to discrimination by Bangladeshi citizens.
On 22 May 1997, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 20 June 1997, the Applicant filed an application for review before the Tribunal.
On 13 July 1998, the Applicant attended the Tribunal hearing and gave oral evidence.
On 14 July 1998, the Tribunal affirmed the decision of the Delegate not to grant a protection visa to the Applicant.
On 9 March 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Refugees Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Refugees Convention.

The Tribunal proceeding

It is relevant to note at the outset, that the Tribunal’s decision was made on 14 July 1998, before the introduction of both ss.91R and 424A of the Act.
The Applicant gave oral evidence before the Tribunal as well as relying on written submissions contained in his protection visa application. The Applicant also provided a number of documents in support of his claim to the Tribunal.
The Applicant claimed that he did not wish to return to Bangladesh because of his “continuing mistreatment”. The Applicant identified the mistreatment as including being denied citizenship and being denied the right to vote. In addition, the Applicant claimed that he was denied employment in Bangladesh, principally because of his race. The Applicant claimed that Biharis cannot work in the public sector and private sector employers discriminate against Biharis. The Tribunal noted that the Applicant had travelled to Thailand in 1991 and to India in 1993 and 1996.
The Applicant claimed that he lived in a camp in Bangladesh with other Biharis and that “local hooligans, who live near but not in the camp, had tried to get him to give them money.” The Applicant stated that the hooligans considered that, because the Applicant had worked in Kuwait, he had money. The Applicant also referred to other criminal activities of the hooligans, such as drug dealing. The Applicant claimed that, when he disagreed with their conduct, he became involved in disputes with them, as a result of which, they wanted to take revenge against him. The Applicant claimed, that if he returned to Bangladesh, the hooligans will try and kill him.
The Tribunal found that, based on the independent country information before it, Bangladesh is a parliamentary democracy presently under the Awami League which came to power in 1996. The Tribunal found that the country has a myriad of social problems, widespread poverty, malnutrition and unemployment superimposed on a rapidly increasing population and a poor resource base. The Tribunal referred to independent country information that disclosed that, in the December 1970 elections in Bangladesh, most Biharis had supported the pro-Pakistan Muslim League rather than the Awami League. It noted that some 250,000 to 300,000 Biharis had remained in camps in Bangladesh and still faced difficulties.
The Tribunal found that most Biharis reside in refugee camps where the conditions are poor. However, it also found that Biharis are not forced to live in refugee camps and are free to live anywhere in Bangladesh.
The Tribunal noted that Biharis that take out Bangladeshi citizenship are free to take out full citizenship rights, however, those that are not Bangladeshi citizens are disadvantaged in regards to employment because of their lack of citizenship. The Tribunal noted that such persons are precluded from government employment and often perform menial jobs.
The Tribunal noted that the most recent reports from the US State Department and Amnesty International do not indicate that Biharis face treatment amounting to persecution in Bangladesh.
The Tribunal noted that, it put to the Applicant during the hearing, the independent country information to which it referred, particularly, that Biharis did not face treatment amounting to persecution. The Tribunal noted that the Applicant responded that the present Awami League government is against Biharis and did not offer the protection needed.
The Tribunal accepted that the Applicant is a Bihari and not a Bangladeshi citizen. It also accepted that, whilst in Bangladesh, the Applicant lived in a Bihari refugee camp.
The Tribunal accepted that the Applicant had achieved a Bachelor of Arts degree and was unable to obtain well paying work in Bangladesh. The Tribunal noted that the independent country information, which it accepted, revealed that Bangladesh is one of the poorest countries in the world where 45% of the population does not have sufficient resources to meet their daily needs. The Tribunal found the Applicant’s claim, that he was not able to find a well paying job, consistent with that independent country information. The Tribunal accepted that Biharis, who are not citizens of Bangladesh, are disadvantaged in obtaining employment, although the independent country information did not suggest that they are denied the right to earn a living. The Tribunal found that there was no evidence before it that the Applicant was denied the right to earn a living whilst he was in Bangladesh.
The Tribunal noted that the independent country information indicated that employment difficulties were faced by Biharis because of lack of citizenship. However, the Tribunal noted that employment restrictions on non-citizens exist in many countries including Australia and would not ordinarily be regarded as persecutory.
The Tribunal found that the difficulty the Applicant had in finding well paid employment in the past was a reflection on his lack of citizenship and the general economic situation in Bangladesh. It found that the Applicant’s difficulty in finding well paid employment did not amount to a well founded fear of persecution within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The Tribunal found that the general economic situation in Bangladesh and the Applicant’s lack of citizenship were the reasons he had difficulty in finding employment. The Tribunal found that those reasons do not amount to persecution. The Tribunal found that any difficulties the Applicant had in finding employment were not because of a denial of employment for a Convention reason.
The Tribunal accepted the Applicant’s claims in relation to the hooligans who lived near the camp and that they demanded money from him and that the Applicant objected to their illegal activities within the camp.
However, the Tribunal found that the Applicant was extorted because he was perceived to have money and not for a Convention reason. The Tribunal referred to the passage by Burchett J in Ram v Minister for Immigration and Ethnic Affairs and Another (1995) 57 FCR 565 (“Ram”), at 569, that “plainly, extortionists are not implementing a policy; they are simply extracting money from a suitable victim. Their forays are disinterestedly individual.”, and noted that there was nothing in the evidence before the Tribunal to suggest that those observations of Burchett J were not equally true in this case.
The Tribunal also found that the Applicant’s confrontation with the hooligans arose because the Applicant objected to their illegal activities and not for any Convention reason.
The Tribunal also noted that the Applicant remained in Bangladesh for 6 months after he returned from his visit to India in 1996, and that, in the circumstances, if the hooligans really wished to harm the Applicant they had ample opportunity to do so before he left Bangladesh.
Whilst the Tribunal accepted that conditions in the Bihari camps are poor and that the Biharis in Bangladesh have been caught up in internal political problems in both Bangladesh and Pakistan, it found that there was no evidence to indicate that Biharis currently face treatment in Bangladesh systematic and serious enough to amount to persecution. Further, the Tribunal found that there was nothing in the independent evidence which indicated that Biharis will face treatment amounting to persecution in Bangladesh in the foreseeable future.
The Tribunal noted that the Applicant had been able to obtain a full education and was able to find work whilst living in Bangladesh. It further noted that the Applicant had been able to leave Bangladesh and work abroad. The Tribunal found that there was nothing in the evidence before it to indicate that the Applicant had suffered treatment amounting to persecution in the past.
The Tribunal concluded that there is not a real chance that the Applicant would face treatment amounting to persecution if he were to return to Bangladesh and was therefore not satisfied that the Applicant had a well founded fear of persecution.

The proceeding before this Court

On 9 March 2004, the Applicant filed his first application in this Court seeking judicial review of the Tribunal’s decision. The application disclosed no reviewable errors.
The Applicant was represented by Counsel today and leave was granted to file in Court this morning an Amended Application seeking relief on the following grounds:
“1.The Tribunal accepted the applicant’s claims that “he was asked for money because as someone who had worked in Kuwait he was perceived as having money to give” (CB 149.5), but found that the extortion demand he experienced was not for a Convention reason. In Rajaratnam v MIMA (2001) 62 ALD 73 the Full Court held that extortion practised upon a person can be for a Convention reason (see paragraphs [42] and [46]), for example where “the extorted party may have been chosen specifically as the target of extortion for a convention reason, or may have become the subject of extortion because of the known susceptibility of a vulnerable social group to which he or she belongs, that social group being identified by a convention criterion” (paragraph [46] at lines 47 to 51). In the present case, the applicant claimed that local hooligans who lived outside the camp extorted money from him. There was sufficient material before the Tribunal to consider whether the hooligans were targeting the applicant in part because he was a member of a vulnerable social group, being Biharis. The Tribunal’s failure to consider this aspect of the applicant’s claim gave rise to jurisdictional error.
2. The Tribunal appeared to have accepted that the applicant, as Bihari, was unlikely to be able to obtain Bangladeshi citizenship. The Tribunal also accepted that people in Bangladesh who are not citizens of Bangladesh “face disadvantages in obtaining employment” (CB148.5). However, the Tribunal found that “disadvantages because of a lack of nationality cannot be regarded as” persecution for a Convention reason. (CB 148.7) and hence “any difficulty [the applicant] may face in finding employment in the future…[is not] a denial of employment amounting to persecution within the meaning of the Convention”. (CB 148.10) The Tribunal fell into jurisdictional error in making this finding. Specifically, if a group of people in a country are denied citizenship and, as a result, they have difficulty obtaining employment, the group of people faces persecution for a Convention reason.
I intend to deal with each of these grounds separately.

Ground 1 – Convention nexus

The Applicant claimed that the finding by the Tribunal that the Applicant’s claim of persecution by hooligans was not for a Convention related reason was in error, in that the Tribunal failed to consider whether there had been a dual motivation for the persecution of the Applicant.
Counsel for the Applicant referred the Court to Rajaratnamv Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 111 (“Rajaratnam”) at [42], in which the Full Court of the Federal Court found that the Tribunal had erred in failing to consider the issue of dual motivation for extortion of an applicant as including extortion amounting to persecution of the applicant because of his race. Finn and Dowsett JJ referred, in their joint judgment, to the judgment of Burchett and Lee JJ in Perampalanam v Minister for Immigration & Multicultural & Indigenous Affairs (1999) 84 FCR 274 (“Perampalanam”). In Perampalanam, at 282-283, the Court found error on the part of the Tribunal where it was plain, on the evidence before the Tribunal, that members of the LTTE were extorting the Tamil applicant in that case, in circumstances where the LTTE saw it as the obligation of every Tamil to make sacrifices willingly or by coercion. In Rajaratnam, there was evidence that the person who was seeking to extort the Applicant spoke of his duty to eliminate all Tamils from Sri Lanka. Counsel for the Applicant agreed that Rajaratnam and Perampalanam are authorities for the principle that, where there is evidence that may give rise to a possible dual motivation for extortion, then, it is an error of law on the part of the Tribunal to fail to consider the possibility of dual motivation for the alleged persecution.
In the case before this Court, the ethnicity of the hooligans is not identified by the Applicant in his claims. The Tribunal notes that they are persons who live near, but not in, the camp.
The Applicant himself stated before the Tribunal that the hooligans tried to get him to give them money because they considered that, because he had worked in Kuwait, he had money. There is nothing in that evidence to suggest that the conduct of the hooligans was motivated in any way by the Applicant’s race. Nor, does the Applicant claim that the hooligans sought to extort money from him because he was a Bihari, rather it was because he was perceived by them to have money.
Counsel for the Applicant stated that there were findings in the Tribunal’s decision of the vulnerability of Biharis in Bangladesh. That may be so, however, where the Applicant himself does not make any claim of persecution by hooligans, by reason of his race, it cannot be that the general poor conditions and vulnerability of the Biharis in Bangladesh is sufficient to suggest a Convention nexus that should have been considered by the Tribunal.
The Tribunal referred to Burchett J in Ram, at 569, where he found that extortionists were not implementing a policy, but that there targets were “disinterestedly individual”. The Tribunal found that there was nothing in the evidence before the Tribunal to suggest that Burchett J’s observation is not equally true. By that finding, on a fair reading of the decision, it is apparent that the Tribunal considered the whole of the evidence before it in finding that the hooligans targeted the Applicant only because they perceived him to have money. Certainly, the Applicant himself does not claim otherwise.
Counsel for the Applicant conceded that it was not the obligation of the Tribunal to seek to identify or find evidence to support the Applicant’s case, rather it was for the Applicant to satisfy the Tribunal that he fulfilled the criteria necessary for being a person to whom Australia owes protection obligations.
There was no evidence or material before the Tribunal to suggest any dual motivation for the hooligans conduct towards the Applicant, as contemplated by the authorities referred to above. In the circumstances, I am satisfied that the findings of the Tribunal were otherwise open to it on the material before it. They are findings of fact with which this Court cannot interfere.

Accordingly, this ground is rejected.

Ground 2 – Persecution.

Counsel for the Applicant contended that the Tribunal erred in finding that the Applicant’s inability to find well paid employment was because of his lack of citizenship and, therefore, that was not persecution within the meaning of the Convention.
The Tribunal makes clear that “there is nothing in the evidence before me to indicate that [the Applicant] was denied the right to earn a living whilst he was in Bangladesh.” The Applicant does not dispute this finding. The Tribunal acknowledged that Biharis in Bangladesh who are not citizens of that country do face disadvantages in obtaining employment, although it found that they are not denied the right to earn a living. The Tribunal found that the employment difficulties facing Biharis arose because of their lack of citizenship. However, the Tribunal noted that employment restrictions on non citizens exist in many countries, including Australia, and are not ordinarily regarded as persecutory.
The Tribunal found that the Applicant’s difficulty in finding well paid employment in the past was both because of his lack of citizenship and the general economic situation in Bangladesh. However, the Tribunal found that such difficulties did not amount to a denial of employment amounting to persecution within the meaning of the Convention. In relation to the future, the Tribunal found that if the Applicant was to face difficulties in finding employment, then it would be because of the general economic situation in Bangladesh and his lack of citizenship, rather than a denial of employment amounting to persecution within the meaning of the Convention.
Counsel for the Applicant did not identify any extraordinary factor that applied to non citizens in Bangladesh that was not equally applicable in many countries including Australia.
Counsel for the Applicant submitted that the Applicant was denied Bangladeshi citizenship because he was a Bihari. The Tribunal noted independent information that indicated that Biharis who take out Bangladeshi citizenship are accorded full citizenship rights. However, the Applicant, acknowledged before the Tribunal that he was not a Bangladeshi citizen because he had missed the opportunity to become a Bangladeshi citizen.
The Tribunal also found, based on the independent evidence before it, that, although Biharis who are not Bangladeshi citizens are disadvantaged in relationship to employment because they are precluded from government employment and often perform menial tasks, recent reports from the US State Department and Amnesty International do not indicate that Biharis face treatment amounting to persecution in Bangladesh.
In the circumstances, it was open to the Tribunal to find, as it did on the material before it, that the Applicant’s inability to find well paid employment was not persecution within the meaning of the Convention. The Tribunal’s finding in relation to the effect and consequences of lack of citizenship were open to it, on the material before it, and it was not bound to find that any employment difficulties because of such lack of citizenship were persecutory. The findings of the Tribunal were otherwise open to it on the material before it. They are findings of fact.
Accordingly, this ground is rejected.

Conclusion

In the circumstances, the decision of the Tribunal is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
On 1 April 2004, the Respondent filed a Notice of Objection to Competency on the basis that the Tribunal decision was given in July 1998, and the Applicant did not file an application seeking judicial review of that decision until 9 March 2004. In the circumstances, s.477(1)(A) of the Act provides that an application to this court under s.39B of the Judiciary Act and s.483A of the Act must be made within 28 days of the notification of the Tribunal decision. Plainly, the Application was filed well in excess of that time and accordingly the proceeding is incompetent.
The Applicant’s applications before this Court are dismissed with costs.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 10 November 2005