SZEDD v Minister for Immigration - [2005] FMCA 112

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEDD v MINISTER FOR IMMIGRATION

[2005] FMCA 112

MIGRATION – RRT decision – Hindu Bangladeshi – no failure to address discrimination in relation to property ownership and employment – no error found.

Migration Act1958 (Cth), ss.36(2), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B
Migration Legislation Amendment Judicial Review Act 2001 (Cth)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Applicant S1874 of 2003 v Refugee Review Tribunal [2003] FCA 1617
Applicants S1573 v Minister for Immigration [2005] FMCA 47
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288
Minister for Immigration v Singh (1997) 74 FCR 553
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
SZAWW v Minister for Immigration [2003] FMCA 479

Applicant:

SZEDD

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2467 of 2004

Delivered on:

1 February 2005

Delivered at:

Sydney

Hearing date:

1 February 2005

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

Mr J Hammond

Counsel for the Respondent:

Mr A Markus

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2467 of 2005

SZEDD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act1958 (Cth), challenging a decision of the Refugee Review Tribunal handed down on 2 December 1998. The Tribunal affirmed a decision of the Delegate which refused an application for a protection visa lodged by the applicant on 31 December 1996, shortly after he entered Australia.
The Minister concedes that limitations in relation to privative clause decisions under the present Part 8 of the Migration Act do not apply to the applicant's present application to this Court, which was filed on 6 August 2004. This is because the transitional provision in cl 8(2)(b) of Sch 1 to the Migration Legislation Amendment Judicial Review Act 2001 (Cth) provide that the amendments apply in respect of judicial review of decisions made before the commencement of the amendments on 2 October 2001 only if “as at that commencement an application for judicial review of the decision had not been lodged”.
In the present case, although there's no evidence before me of previous judicial review proceedings by the applicant, the Minister admits that as at 2 October 2001 the applicant was a party to earlier proceedings seeking judicial review of the present decision by reason of being a represented party in the Muin or Lie matters in the High Court. I am ready to accept that concession, which has been accepted by this Court in other matters, including SZAWW v Minister for Immigration [2003] FMCA 479 at [4] and Applicants S1573 v Minister for Immigration [2005] FMCA 47 at [4-8].
In matters free from restraints under Part 8, the Court's powers to grant relief are discretionary, according to the general principles applicable to the granting of administrative law remedies under s.39B of the Judiciary Act 1903 (Cth). However, the Minister in the present case did not submit that the Court should refuse relief based on discretionary considerations notwithstanding the various delays that have occurred before the applicant's commencement of the present proceeding. Nor did she submit that any estoppel or ground for discretionary relief arises from the fact that Emmett J dismissed an earlier application for judicial review brought by the applicant - see Applicant S1874 of 2003 v Refugee Review Tribunal [2003] FCA 1617. I have therefore addressed the present matter on the basis that the applicant should be granted relief if he can make out a basis for entitlement to writs of certiorari or mandamus under s.39B.
The original application to this Court did not contain proper grounds of judicial review, and the applicant did not comply with directions given at the first hearing date that he file and serve an amended application setting out full particulars of the grounds relied on before 20 September 2004, and written submissions 14 days before the appointed date.
He has appeared today by counsel instructed on a direct basis. Counsel told me that he received instructions in recent days and sought to file an amended application with written submissions in support. The amendment was not opposed by the Minister.
At the start of the hearing, counsel for the applicant sought an adjournment of the hearing, to enable his client to obtain a transcript of a tape of the Tribunal's hearing conducted on 18 March 1998. Counsel accepted that this evidence would not be relevant to any ground pleaded in the amended application, and was unable to point to a ground which, on his instructions, would be made out by the use of that evidence. However, he sought an adjournment to allow him to assess the tape and the Tribunal's stated reasons in the light of it, to determine whether additional grounds for judicial review could be found. Given the history of the matter which I have indicated above, I considered that the applicant had had ample time to obtain a transcript and legal advice upon any possible grounds of review that it might reveal, and refused the application.
Counsel for the applicant made oral submissions addressing the first three of the grounds pleaded in the amended application and, as I understand him, accepted that the second ground was dependent upon success in the other two. Those two grounds were, as I understood them:
i)The Tribunal's reasons revealed a misunderstanding of the concept of persecution covered by the Convention definition of “refugee” as adopted by s.36(2) of the Migration Act, in that it failed to appreciate that discrimination in relation to property and employment rights may be encompassed within the concept of “persecution”. This error was revealed in the Tribunal’s failure to address implicit claims made by the applicant to fear deprivation of property rights and of rights and access to employment, by reason of his Hindu religion and as a result of discriminatory treatment of Hindus in relation to those two matters.
iii)The Tribunal misconstrued s.36(2) of the Migration Act, by addressing the claims of the applicant against the definition of "refugee" in the Convention in the light of the situation in Bangladesh as at the date of the Tribunal's decision in 1998, rather than as at the date of the applicant's application for a protection visa in 1996. This caused it to take into account against the applicant some legally irrelevant material concerning changes to the situation in Bangladesh.
I can deal with the second of these contentions shortly at this point in my reasons. The proposition that the Tribunal must determine an applicant’s status as a refugee as at the time of application has been rejected in a manner which is clear and binding upon me (see Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 at 290 to 294, see also Minister for Immigration v Singh (1997) 74 FCR 553 at 556, and Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 293. In my opinion this ground and other grounds which rely upon it must fail for that reason.
To understand the first ground which was argued, it is necessary to set out the claims made by the applicant in his visa application and in the proceedings in the Tribunal.
His application for a protection visa was presented on his behalf by Messrs Parish Patience Solicitors on 31 December 1996. He indicated that he had left Bangladesh in October 1991 to go to India “to escape persecution. I have returned to Bangladesh on several occasions since then for short visits to see my family.” His application also indicated that his father, mother, five brothers and one sister all resided in India. He stated:
As a Hindu I was the victim of anti-Hindu communal violence. All my family suffered and we were forced to flee Bangladesh for our safety. I will forward a detailed statement in support of my application with all my claims included and my full story explained.
His solicitors also advised that they were obtaining documentation to support his application, and that a detailed submission statement would be submitted to the department "shortly". However, no material supporting the application had been presented by April 1997, and the delegate refused it for obvious reasons.
The applicant appealed to the Refugee Review Tribunal on 2 May 1997, and was assisted by Messrs Parish Patience who informed the Tribunal:
Our client is still waiting to receive documents from Bangladesh to confirm his identity and Bangladesh citizenship and these together with a detailed statement from the applicant will be forwarded to the Tribunal shortly.
However, no supporting material was lodged with the Tribunal by that firm.
In response to an invitation by the Tribunal to attend a hearing on 18 March 1998, Mr Haque, a migration agent, on 9 March 1998 forwarded to the Tribunal a statement signed by the applicant. In his statement the applicant said that Muslim students did not behave well with him while he was a student at high school:
They always ill-treated me and made trouble for me in the class. We were a very few students from minority Hindu religion in the school.
8.When we were playing soccer in the school ground in 1989, Muslim students made some objectionable comments on my religion and hit me. I wondered that no came forward to help me. I reported it to the headmaster. As he is a conservative Muslim, he did not take any action against it.
9.I was a secondary school certificate candidate in 1990. But I failed to continue my education as because a group of Muslim students were after me to kill me. At that time a political movement was going on against Ershad. All the political parties were united to remove Irshad from power.
The statement then made claims that the applicant had been active in politics in Bangladesh between 1991 and 1995, and had received ill-treatment from "Awami thugs" by reason of his political activities on behalf of the BNP Political Party. It claimed that after one incident in 1995 in which he was hit with hockey sticks and hospitalised:
14. My father and other protested against that incident. As a result our houses were burnt and looted in February 1995. Our family members were physically insulted. Though the BNP Government was in power, I did not get any assistant from them. It happened to me, as I was a membership of the minority Hindu family in the local area.
15. My friends, relative and members of the family asked me to leave the Country as soon as possible for safe and secure life. In March I went to India for a secure life. But the situation in India is more worse than Bangladesh. They did not pay any attention to us because we belong to Bangladesh.
The applicant did not put forward documentation to corroborate his claims to the Tribunal. At the hearing, according to the account given to the Tribunal in its reasons which I have no reason to doubt, the Tribunal explored with the applicant the inconsistency between the two bases for claiming refugee status put forward in the original application, as compared to the statement presented shortly before the hearing.
In this respect, the Tribunal notes:
The applicant said all of his family live in India, since “1994 or 1995; I am not sure”. When the Tribunal put to the applicant that he said in his application to the Department that he left Bangladesh in October 1991, and had since returned to Bangladesh on short visits, the applicant responded that he often went to India and finally settled there in 1995. He said his solicitor must have misunderstood him, as he went to India regularly.
The applicant said that he attended high school in 1982-89. He said that he worked for a “year or two” at his uncle’s shop in Bangladesh. The Tribunal asked how often the applicant had returned to Bangladesh since 1991. He said that from 1991, he would spend six months in Bangladesh and six months in India. He then said that he stopped working at the shop in “maybe 1993’. After that, he did not have a permanent job; he had to go to the village to look for opportunities. He would go to the village and look for job opportunities. He said that he stopped working at the shop in “maybe 1993”. He would come and go between India and Bangladesh and stay with friends.
…
The applicant said that he joined the BNP in 1991, after the Barberi mosque incident. He said that he got in touch with the party in 1991, but became a member in the fuller sense at the beginning of 1992. When the Tribunal asked about what attracted him to join the BNP, the applicant said that when “our houses were burnt” during violence against Hindus, “no one came to help from the Awami League”. He said that this occurred in “1990, maybe 1991”. The applicant said that one of the members of the BNP came to assist the family and he had a “soft corner” for the BNP since then.
The Tribunal then sets out its questioning of the applicant in relation to his claims to fear persecution on the basis of political associations, but it is unnecessary for me to explore this part of its reasons, since no challenge is made before me to its discussion and reasoning supporting its conclusion:
The Tribunal does not accept that the applicant was a member of the BNP or that he faced serious harm of any kind for reasons of his political opinion for the following reasons.
That conclusion in relation to the applicant’s political claims was stated at the start of the Tribunal's findings, which also includes the following general statement:
The Tribunal has serious doubts about whether the applicant has a subjective fear of persecution. On his own evidence, he travelled into and out of Bangladesh from 1991 until 1996, spending up to 6 months in India. He said that, during this period of time, he had returned to Bangladesh “a minimum of twice a year”. This indicates the absence of a subjective fear of persecution. Even if the Tribunal was prepared to accept that the applicant has a subjective fear of persecution for the purposes of this decision, there is no real chance that he will face persecution for a Convention reason. For a fear to be well founded, it must have a foundation in an “objective examination of the facts” Chan per McHugh at 429; Dawson J at 396; Toohey J at 406; Gaudron J at 412.
The Tribunal has grave concerns about the applicant’s credibility. There were numerous inconsistencies between the accounts given to his initial solicitor, the statement lodged by his advisor to the Tribunal dated 9 March 1998, and the evidence given at hearing just nine days later. The application discloses fabrication and embellishment of claims over time to enhance the applicant’s’ claims for refugee status. The detailed statement (of 9 March 1998) containing his claims was lodged over 14 months after he lodged his original application.
After explaining its rejection of the applicant’s political claims put forward at the hearing and by Mr Haque, the Tribunal addressed the applicant's situation as a Hindu in Bangladesh as follows:
The Tribunal accepts the applicant is a member of the Hindu minority in Bangladesh, which has experienced discrimination and has been disadvantaged in areas such as access to government jobs and political office. It also accepts the independent evidence that Islamic extremists have attacked women and religious minorities and development workers and that the government has sometimes failed to denounce, investigate and prosecute the perpetrators of these attacks. However, the Tribunal also accepts the evidence that the Constitution protects the right to practise the religion of one’s choice and this right is respected in practice, that the support for Islamic fundamentalism in Bangladesh decreased significantly at the last election, that religious minorities have been able to live, work and worship in Bangladesh with minimum difficulties, and that the government, which came into power in June 1996, has been actively promoting communal harmony. The general secretary of the Hindu Buddhist Christian Unity Council, a non-government organisation which advocates the rights of religious minorities, has said that the attitude of the Prime Minister Sheikh Hasina was a cause for hope. Whilst the Tribunal accepts that Hindus in Bangladesh suffer discrimination, it is not of such a type and sufficient severity as to amount to persecution.
The Tribunal accepts that the applicant may have faced difficulties when he was at school, and that the headmaster of his school did not protect him from mistreatment in this context. However, even if the Tribunal was to accept that the applicant’s difficulties emanate from his Hindu religion, such behaviour falls short of being “persecution of” the applicant as a Hindu,. Unsystematic prejudice “flourishes where it can, including in our society”: Lal v Minister for Immigration & Ethnic Affairs (1996) 42 Ald 535 per Madgwick J at 537. In any instance, persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or appears to be powerless to prevent that private persecution” Applicant A per McHugh J at 354. The independent evidence cited above indicates that, while religious tensions exist in Bangladesh, the government is trying to promote racial tolerance. The applicant has not suffered a detriment in education of sufficient severity as to amount to persecution.
The Tribunal accepts that the applicant has witnessed and had been a victim of communal violence arising out of events relating to the Barberi Mosque, and has witnessed violence against members of his community.
The Tribunal then refers to Abdulla v Minister for Immigration and Multicultural Affairs, and continues:
In the circumstances of this case, the independent evidence does not suggest a recurring pattern of violence against Hindus in Bangladesh. There certainly have been incidents of communal violence since the formation of the country in 1971, but many of these incidents have been largely spontaneous, and there has not been a significant incident of communal violence since late 1992/early 1993. While the Tribunal does not wish to dismiss in any way the considerable harm and distress caused by communal violence, this violence has not amounted to persecution of persons of the Hindu faith within the meaning of the Convention. In any event, it does not appear that such episodes of communal violence are officially tolerated by the government nor is the Government unable to promote racial tolerance. The Tribunal finds that protection is available from the Bangladesh authorities.
The Tribunal does not accept that it is the policy of the Bangladesh Government to encourage such communal violence or that the Bangladesh authorities have tacitly accepted such episodes of civil unrest and will continue to do so in the future. Nor does the Tribunal accept that the fact that such communal violence has occurred proves the failure of state protection. A state cannot provide complete safety of its citizens against all forms of harm. “Protection” by no means implies that the authorities must or can provide absolute guarantees against harm ( see Thiyagarajah v MIMA (1997) 143 ALR 118 at 121; MIMA v Prathapan, Full Federal Court, 12 August 1998, unreported, per Lindgren J at 13). Questions arise as to the adequacy and effectiveness of state protection and how that is to be measured. The United States Department of State has indicated that the then BNP government moved quickly to contain outbreaks of communal violence during the most recent communal conflicts. DFAT indicates that cabinet repeated its call for communal harmony and popular restraint during the intercommunal violence, and that it suggests an improvement in the treatment of the Hindu minority and the state protection that could be expected with the election of the Awami League government in June 1996.
Accordingly, whilst the Tribunal agrees that Hindus are subject to discrimination and harassment in Bangladesh, it does not accept that the applicant has been subject to any treatment in Bangladesh which amounts to persecution.
The Tribunal accepts that many human rights violations occur in Bangladesh by international standards. However, generalised failure to adhere to basic standards of human rights would not entitle a person to refugee status on that basis alone: see, for instance, Yan Xu & Anor v MIMA & Anor (unreported, Federal Court of Australia, Olney J, 18 April 1997, p16).
Having considered the applicant’s claims both individually and cumulatively, the Tribunal is not satisfied that there is a real chance that he faces treatment amounting to persecution in Bangladesh for a Convention reason, from the authorities, the Awami League or anyone else. The Tribunal is therefore not satisfied that the applicant’s fear of persecution is well-founded.
As the Tribunal has found that the applicant does not have a well-founded fear of persecution in Bangladesh, his country of nationality, the Tribunal does not need to consider the applicant’s claims relating to the treatment he faced in India.

Counsel for the applicant submitted that the Tribunal misunderstood statements by Mason CJ Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 388:
Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason.
And by McHugh J at 430:
In Oyarzo v Minister of Employment and Immigration the Federal Court of Appeal of Canada held that on the facts of that case loss of employment because of political activities constituted persecution for the purpose of the definition of "Convention refugee" in the Immigration Act 1976 (Can), s 2(1). The Court rejected the proposition that persecution required deprivation of liberty. It was correct in doing so, for persecution on account of race, religion and political opinion has historically taken many forms of social, political and economic discrimination.
Counsel did not submit that a failure to appreciate that discrimination in relation to economic rights could amount to persecution emerged from the Tribunal's general discussion of the Refugees Convention in which it expressly makes reference to these two passages in Chan. However, he submitted that this was implicit in the highlighted passage in the above extract of the Tribunal’s reasons:
Whilst the Tribunal accepts that Hindu's in Bangladesh suffer discrimination, it is not of such a type and sufficient severity as to amount to persecution.
As I understand him, his argument was that the Tribunal must have overlooked the nature of discriminatory conduct which could constitute persecution, as indicated by Mason CJ and McHugh J, in the context of the particular matter in front of it. He argued that the applicant in his original application for a protection visa had implicitly made claims that he had a fear based on discriminatory practises in Bangladesh against Hindus involving property ownership, in particular, through the misuse of legislation referred to in country information as "The Vested Property Act", and from discriminatory laws or practises in relation to employment.
He submitted that the Tribunal would have addressed those claims if it had not acted under a misconception as to the scope of discrimination covered by the definition. Obliquely, it was also submitted that there was error of law by the Tribunal in not addressing the applicant's claims in relation to a fear of discrimination in relation to his property and employment rights and abilities.
I do not accept these submissions. I do not accept that the applicant, at any point, put forward a claim to fear persecution by way of discrimination of the sort submitted. I do not accept that such a claim was made in the statement:
I was the victim of Hindu communal violence - all my family suffered and we were forced to flee Bangladesh for our safety.
made in the original application. I do not consider that the Tribunal failed to address a claim made in that statement or elsewhere by the applicant, nor that in the circumstances of this case it was obliged to examine discrimination against Hindus more extensively that appears in its reasons.
The Tribunal expressly refers to the applicant’s original claim of fear as a Hindu. It expressly notes that it questioned the applicant about what he said, and that the applicant appeared to withdraw his statement that he had settled in India with his family in 1991. In my opinion, it was open to the Tribunal to form the view that the applicant put forward no more than a fear based on his Hindu religion to fearing becoming a victim of communal violence. These claims have been answered by the Tribunal's clear findings against the applicant, which I set out in the passages above.
I do not consider that the Tribunal's reasons disclose any misconception of the Convention definition, nor a failure to address any part of a claim made by the applicant to come within its protection. I therefore consider that first ground argued by the applicant's counsel fails. As he accepted, so must his further grounds that seek to put the same submission in a different way.
For the above reasons, I dismiss the application.
RECORDED : NOT TRANSCRIBED
I shall order the applicant to pay the respondent's costs in the sum of $4500.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 16 February 2005