SZHBX v Minister for Immigration

[2007] FMCA 461

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHBX & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 461

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to carry out review – whether claim relating to persecution by reason of membership of a particular social group raised on the material before the Tribunal.

Migration Act 1958, ss.91R, 427, 430

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
Applicant M164 of 2002 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 16
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Mohammad v Minister for Immigration & Multicultural Affairs [2005] FCAFC 47
NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 263
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) 219 ALR 27
NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Rajaratnam v Minister for Immigration & Multicultural Affairs (2001) 62 ALD 73
SAAD v Minister for Immigration & Multicultural Affairs [2003] FCAFC 65
Seyfarth v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1713
STCB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 61
SZATG v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 258
SZCBT v Minister for Immigration & Multicultural Affairs [2007] FCA 9
SZEJF v Minister for Immigration & Multicultural Affairs [2006] FCA 724
SZEEX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 359
SZEPY v Minister for Immigration & Multicultural Affairs [2006] FMCA 31
VXAJ v Minister for Immigration & Multicultural Affairs [2006] FMCA 234
WAGJ v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568

Applicant: SZHBX & ORS

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2500 of 2005

Judgment of: Barnes FM

Hearing date: 7 February 2007

Date of Last Submission: 14 March 2007

Delivered at: Sydney

Delivered on: 5 April 2007

REPRESENTATION

Counsel for the Applicant: Mr J. Azzi

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr J. Mitchell

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2500 of 2005

SZHBX & ORS

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 9 August 2005 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas.  The applicants are a husband, wife and child.  The first named applicant (the applicant husband) visited Australia in 2003.  The three applicants came to Australia in February 2005 and applied for protection visas.  The application was refused and the applicants sought review by the Tribunal.  Only the first-named applicant made specific claims under the Refugees Convention.  His wife and child relied on their membership of his family.  For convenience the first-named applicant is referred to as the applicant. 

2. In a statutory declaration accompanying his protection visa application the applicant claimed to fear persecution as a Buddhist in Bangladesh.  He claimed that members of the Buddhist community were harassed and intimidated.  The applicant claimed that he joined the Buddhist Association in 1993 and that he had been Assistant General Secretary of the Bangladesh Buddhist Association for five years.  He also claimed that in his career as a businessman he had “suffered enormously for his religious background”, it being easy to identify the members of his community by their name.  He claimed that he was discriminated against in running his business by officials of the Muslim faith and that finally the business failed.

3. The applicant also claimed generally that Buddhist people in Bangladesh were the subject of abuse and discrimination by Muslims.  He claimed that since joining the Buddhist Association he had tried to unite the community and organise movements to establish the rights of Buddhists in Bangladesh and that this had brought him to the attention of the authorities.  In particular, he claimed that he organised a protest against a 1996 raid by law enforcement authorities on a Dhaka University hall of residence. 

4. He made general claims about the treatment of Buddhists in Bangladesh.  He claimed his family had been a victim of anti-minority policies in existence since 1947 under which 60% of the property of the religious minority had been “grabbed illegally” by members of the Muslim community.  He referred to a 1976 circular under which minority property could be declared as enemy (vested) property.  He claimed that his family was one of the worst victims of the Enemy Property Law and had lost their hereditary estates to local Muslim thugs. 

5. He claimed that discrimination had forced him to close his original business as a contractor, as his bills had not been paid by officials, that he had to pay substantial bribes to obtain contracts and receive payments and that he was warned and threatened by political gangsters to quit the business.  However the applicant claimed that he then started an import/export business in 1997 and was appointed as agent of an Australian company in 2003. 

6. The applicant also claimed that he actively participated in organising a 2002 protest against the murder of a religious leader by BNP gangsters and that during the protest he was seriously injured when government thugs attacked the demonstration. 

7. He claimed that since 1997 he had been doing well in business and had spent a substantial amount of time with the Buddhist Welfare Association working for the benefit of the community.  He claimed that he became popular in the area and within his community but that his “prosperity in business and also [his] leadership profile made [him] an eyesore of [his] competitor who are Muslim by faith”.  He claimed it was difficult for them to tolerate a member of a minority group as a competitor.  He claimed that “they” tried in various ways to stop his career in business by lobbying political leaders, influential persons, fundamentalist groups and the authorities to act against his interest and that he had started to experience hurdles to progress in his business since the current government came into power.  He claimed he had received non-cooperation and discrimination in every aspect for his religious belief.

8. The applicant also claimed that as a result of his leadership profile coming to the attention of the government authority and fundamentalist Muslims, “influential personalities” had provoked government agencies to take action against him.  He claimed that in May 2004 he was physically attacked by some unidentified persons (who broke his leg and injured his hand) and that subsequently he received anonymous calls in his office that demanded a substantial amount of money and threatened his life and to abduct his wife and child if he reported the matter to the police.

9. He claimed that in 2004 he was forced to pay compensation to a buyer as part of a commercial dispute intended to victimise him at the inspiration of Muslim businessmen and that he and his wife had been threatened from various sources.  The applicant claimed that after he left Bangladesh his office was vandalised, that people were looking for him and that he did not feel safe to return. 

10. In conclusion the applicant claimed he had a real chance of being persecuted because of his religious profile, that their lives would be under threat, that his opponents may file false cases against him and that he may be arrested and put into gaol.  He claimed he would be discriminated against in every “walks of my life” and that his life would be in jeopardy.  He claimed that he had been mistreated as a member of the Buddhist community due to his leadership profile and membership of a minority religion.  He asserted that the prevailing situation was unstable and that the government had failed to protect and was unwilling to protect members of minority religions from harm. 

The Tribunal decision

1. In its reasons for decision the Tribunal outlined the applicant’s claims made in connection with his protection visa application, referred to documents provided to the Tribunal in support of his claims and summarised the claims made at the Tribunal hearing. 

2. The Tribunal accepted that the applicants were Buddhists and members of the Buddhist community in Bangladesh, that the husband assisted the Buddhist community in his local area and that he held the position of Assistant General Secretary of the Bangladesh Buddhist Association “for three (sic) years over the period 2002 – 2003”.  However, the Tribunal did not accept that this was a significant organisation, as it had only 73 members.  From the limited duties the applicant claimed to have performed, it did not accept that his role of assistant general secretary was anything other than a “very menial position”. 

3. Based on the nature of his claimed tasks the Tribunal did not accept that the applicant could be regarded as a leader or senior member of the Buddhist community in Bangladesh, even in his own area or home village.  Accordingly it did not accept his claims that as a result of his “leadership profile” he came to the attention of the government authority and fundamentalist Muslims, or that influential personalities provoked the government agencies to take action against him so that he was not able to lead a normal life or that they seriously interfered with his personal freedom. 

4. The Tribunal was not satisfied that if the applicant returned to Bangladesh there was a real chance he would be persecuted because of his “religious profile”, that his life (or that of his family) were under threat or that there was no safety or security for a member of a minority community.  The Tribunal found that it followed that it was satisfied that the applicant had embellished his claims in order to enhance his claims for a protection visa and that he was not a credible witness.

5. The Tribunal then addressed the specific claims made by the applicant about past events.  After outlining the discussion at the Tribunal hearing about the applicant’s involvement in the 2002 protests after the death of a religious leader, the Tribunal accepted that the applicant was involved in a limited way in inviting some people to protest for justice.  However, based on his limited and unsupported claims, it did not accept that the applicant was one of the leaders or major organisers of the demonstration.  While it accepted that photographs provided by the applicant showed him at the back of one of the demonstrations, it also accepted that such photographs did not show him holding the banner, in the front row or leading the demonstration.  Nor was the Tribunal satisfied that the applicant could be identified from the photographs that appeared in newspapers and would be at risk on that basis. 

6. The Tribunal found that it was not able to satisfy itself that the applicant was a leader of the protest or had a high profile in the demonstration or that because of his involvement there was a real chance he would be subjected to serious harm amounting to persecution for a Convention-related reason.  

7. The Tribunal did not accept that the applicant had been targeted because the Muslim majority (with Jamat-e-Islami fanatics) believed that people who did not follow Islam could be killed.  On the basis of independent country information it accepted that the Bangladeshi government had taken the killing of the Buddhist religious leader seriously and had gone to considerable efforts to reassure the community that the matter would be properly dealt with by the authorities.  It found that this had been demonstrated by the apprehension and trial of alleged perpetrators.  The Tribunal was satisfied the government and police response to this incident demonstrated that there was effective state protection for Buddhists in Bangladesh and that the Buddhist community was able to express its concerns through organised demonstrations and protests without these being banned or subject to other interference or attack. 

8. In relation to the applicant’s claims that he was attacked in May 2004 by identified persons and subject to extortion the Tribunal observed that he did not claim in his protection visa application that this was for a Convention-related reason. 

9. The Tribunal accepted that as a small businessman the applicant was subject to criminal extortion and was on one occasion stabbed in the hand by extortionists, but that he did not recognise his attackers although he believed they were Muslims and those who had been extorting money from him.  The Tribunal recorded that at the hearing the applicant had claimed it was “hooligans” who had tried to extort money from him.  When asked what he paid them for “he replied that it was extortion and all business had to pay this, but also because he was involved in religion”.  The Tribunal also recorded that when asked if this was just the price of doing business in Bangladesh the applicant had replied in the affirmative.  It found:

   In short, from the claims made by the Applicant the Tribunal has not been able to satisfy itself that the essential and significant reason for the extortion and attack on him was because he was Buddhist, or a leader of the Buddhist community, or for any other Convention-related reason but rather finds that it was non-Convention-related criminal behaviour. 

10. The Tribunal accepted that extortionists had visited and vandalised the applicant’s office after he left for Australia, but from his evidence and claims was not able to satisfy itself that this was for a Convention-related reason.  Nor was it satisfied that threatening telephone calls demanding payment of extortion money were for Convention-related reasons.  The Tribunal accepted that neither of the adult applicants chose to approach the police about these extortion threats, but found that this was not because they were afraid of the authorities or concerned their complaints would not be actioned because they were Buddhists, but rather because the extortionists had threatened to kidnap and harm their daughter and harm the applicant’s wife if they did so.  The Tribunal was satisfied that if the applicants had been subjected to or threatened with serious harm amounting to persecution for a Convention reason they would at least have moved house in the eight months they remained in Bangladesh after the incidents in question.   It observed that while the applicant held a passport he did not seek to leave the country because of the attacks or threats made against him and his family (but left the country for 13 days in October 2004 and then chose to return).  The Tribunal was satisfied if the applicant had a well-founded fear of persecution on this basis he would have sought protection at that time and would not have returned to Bangladesh. 

11. The Tribunal concluded that it was not able to satisfy itself that the essential and significant reasons for the incidents, extortion and threats were Convention related or that the authorities in Bangladesh refused to act in response to them for a Convention-related reason.  Hence it was satisfied there had not been a breakdown in effective state protection and that there was not a real chance the applicant would be subject to serious harm amounting to persecution for a Convention-related reason on this basis if he returned to Bangladesh.

12. The Tribunal then considered to the applicant’s claims in relation to his business, in particular his claims that he was “warned by political gangsters” to quit business and that his recent prosperity and also his leadership profile made him an eyesore for his Muslim competitors who tried to stop his business career as he was a member of a minority.  The Tribunal also summarised his claims in relation to a disputed compensation payment. 

13. The Tribunal accepted the applicant was involved in two small businesses, one of which had closed (the trading company now being operated by his brother).  It was not able to satisfy itself that the applicant’s business was targeted by Muslims or Muslim businessmen because he was a Buddhist or for any other Convention-related reason.  It did not accept these claims and did not accept that discrimination forced the applicant to close his contractor business as his bills were not paid by officials and that he had to pay bribes to obtain contracts and receive payments for Convention-related reasons.  Hence it did not accept his claim that his prosperity and leadership profile made him an eyesore to his Muslim competitors who tried to stop his business career as he was a member of a minority in the manner in which he had claimed. 

14. The Tribunal also addressed the applicant’s claim that his opponents may file false cases against him.  It did not accept these unsupported claims.  It was not able to satisfy itself that in view of the applicant’s position there was a real chance that false charges would be laid against him by the authorities, the Muslim community or by anyone else in the Bangladesh community.  It noted the absence of any past charges or evidence of a basis for future charges.  It had regard to the lack of evidence or any claim that the applicant had a “political profile” and to its finding that it did not accept his claims based on “leadership” or “religious” profile.  It did not accept these claims. 

15. In relation to the applicant’s claim relating to a fear of persecution from powerful people, the Tribunal was satisfied there was not a real chance of serious harm for a Convention-related reason.  It had regard to its finding that the applicant did not have a leadership or other profile in Bangladesh.  Nor was the Tribunal able to satisfy itself that there was an absence of effective state protection available to Buddhists in Bangladesh.  It did not accept the applicant’s claim that people who did not follow Islam could be killed.  Given his failure to seek refugee status on past visits outside Bangladesh, it was not satisfied that the applicant had a well-founded fear of serious harm for a Convention reason as a member of the Buddhist minority at the hands of fundamentalists and BNP activists. 

16. The Tribunal next addressed the applicant’s claim that his family were victims of the Enemy Property Law and had lost their hereditary estates to local Muslim thugs.  The Tribunal recorded that it had put to the applicant a number of matters.  In response to its understanding that this law was a Pakistan-era law relating to land seized from Hindus and had been addressed by the Vested Property Return Acts of 2000 and 2001, the applicant claimed it related to events affecting his grandfather’s land.  The Tribunal recorded that it also put to the applicant that it had difficulty understanding his claims of persecution on this basis and that he responded “that there were no reports on the return of property”.  When the Tribunal put to the applicant that as he had never owned the land it had difficulty understanding the matter, the applicant claimed that his grandfather would have given the land to his father and then his father to him. 

1. However the Tribunal found “notwithstanding these claims” that it accepted independent country information over unsupported claims made by the applicant.  It did not accept that the applicant had suffered serious harm amounting to persecution for a Convention reason on this basis.  It observed that the applicant claimed he still owned his own home.  The Tribunal was satisfied that if the applicant had a well-founded fear of serious harm for a Convention reason on this basis “which goes back several generations” he would have sought refugee status on an earlier overseas visit.  Hence it was satisfied he did not have a well-founded fear of serious harm for a Convention reason on this basis. 

2. The Tribunal recorded that at the hearing the applicant claimed (for the first time) that Muslims working on land he owned had cut the crop and kept it for themselves and that he had complained to the chairman who had said he would find the solution but did not do so.  The applicant also claimed he was threatened that if he cultivated the land he would be killed.  The Tribunal accepted that there was an unresolved dispute in relation to crops grown by Muslims on the applicant’s one and a half acres of land, but was not able to satisfy itself that the applicant had been subjected to serious harm amounting to persecution for a Convention reason on this basis or that the essential and significant reason for this dispute between a landlord and his tenants was Convention related.  Nor did the Tribunal accept there was a real chance that the threats made by the workers to kill the applicant if he sought to cultivate the land were Convention related.

3. The Tribunal discussed the possibility of relocation and concluded that it would be reasonable for the applicant to move elsewhere in or near the city of Chittagong where his business was and where his family could continue to live and that he would be able to receive support from the Buddhist community, but that if he chose not to return there it would be reasonable for him to live elsewhere in Bangladesh in safety. 

4. Based on the individual and cumulative claims and circumstances the Tribunal was not satisfied that there was a real chance the applicant would be subjected to serious harm amounting to persecution for a Convention reason on return to Bangladesh. 

This application

1. The applicants sought review by application filed in this Court on 7 September 2005.  They rely on a further amended application filed on 7 February 2007.  There are five grounds in the further amended application.  These grounds overlap in some respects and the applicant relied on the same submissions (particularly in relation to particular social group) in relation to a number of the grounds. 

Whether Tribunal failed to deal with an integer of the applicant’s claim

1. The first ground is that the Tribunal made a jurisdictional error of law by failing to deal with an integer of the applicant’s claim.  The particulars of this ground are as follows:

   (a)     The applicant claimed that he suffered persecution by reason of being “one of the worst victims of Enemy Property Law” which led to loss of “our hereditary estates to local Muslim thugs”.

   (b)     The Tribunal enquired as to “how [this was so] if his grandfather was a Buddhist”.

   (c) The Tribunal accepted independent country information “over unsupported claims made by the applicant” that the “Vested Property Return Acts of 2001 and 2000 sought to address the earlier acquisition of Hindu land”.

   (d)     The applicant claimed that there were “no reports of the return of property” previously owned by Buddhists.

   (e)     The Tribunal noted that the applicant “never owned” the land without making a finding on the material question of fact, namely, whether the law would ultimately be owned by the applicant under hereditary, customary or other law in Bangladesh and whether the “Vested Property Return Acts of 2001 and 2000” applied to earlier acquired Buddhist land.

2. The applicant submitted that the Tribunal failed to consider an integer of his claims, being that he was persecuted by reason of his hereditary estate being lost to “local Muslim thugs”. The applicant claimed that the Tribunal committed jurisdictional error in failing to make a finding in accordance with s.430 of the Migration Act 1958 (Cth) on a material question of fact as to whether the land belonging to his grandfather constituted “hereditary” estate which was deemed “enemy (vested) property” and confiscated by the authorities as claimed. It was said that such omission disclosed a failure to exercise jurisdiction in the sense considered in MIMA v Yusuf (2001) 206 CLR 323 at [10] per Gleeson CJ and [35] per Gaudron J.

3. It was recognised that in Yusuf McHugh, Gummow and Hayne JJ at [68] acknowledged that all that s.430(1)(c) obliged the Tribunal to do was to “set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision” but noted that their Honours also went on to say (at [69]) that s.430 entitled a Court to infer that any matter not mentioned was not considered to be material and that this may also reveal jurisdictional error.

4. Moreover, the applicant pointed out that at [75] their Honours referred to MIEA v Guo (1997) 191 CLR 559 at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in relation to the fact that it is “ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events”. 

5. It was also submitted that in STCB v MIMIA [2006] HCA 61 the High Court did not doubt that if blood feuds were Convention-based persecution they could pass down the line. The applicant argued that the Tribunal had to make a finding as to whether Buddhists were subject to compulsory acquisition of land because it was deemed enemy land and also whether customary law meant that the estate owned by the grandfather passed down the line. Issue was also taken with the extent to which the Tribunal had relied on independent country information in relation to this claim. It emerged that Mr Azzi, counsel for the applicant, was not in possession of a copy of the supplementary court book containing country information referred to by the Tribunal. Accordingly the parties were given the opportunity to make supplementary submissions after the hearing in relation to this material.

6. It was submitted that the independent country information dealt only with Hindu land, so that the claims of the applicant remained in limbo and were unresolved and yet they were said to be critical to the applicant’s claim for persecution.  In post-hearing written submissions counsel for the applicant addressed the material in the supplementary court book including, relevantly, the fact that such information stated that many Hindus had been unable to recover landholdings lost because of discrimination in the application of the law, especially the “now defunct” Vested Property Act which was said to have allowed “enemy” (Hindu) lands to be expropriated by the government.  The information also discussed the extent to which land was seized from Hindus and the introduction of the Vested Property Return Act in April 2001 which provided for return to the original owners provided the original owners or their heirs remained resident citizens of India and an amendment to that Act which allowed the government unlimited time to return the vested properties. 

7. The applicant submitted that there was no indication in this information as to what constituted vested property and whether other minorities’ properties were covered by the now defunct Vested Property Act, so that on one view the information confirmed the applicant’s representation to the Tribunal that there was no report about return of properties owned by Buddhists that had been confiscated. It was submitted that such a claim needed to be investigated by the Tribunal, which is directed by the Migration Act to undertake inquisitorial procedures and empowered to take necessary steps while observing the requirements of procedural fairness (see Applicant VEAL of 2002 v MIMIA [2005] HCA 72 at [23] – [24] and [26]).

8. While this ground was expressed as a failure to deal with an integer of the applicant’s claim it was also said that there was no report in the country information cited by the Tribunal about inheritance law concerning Buddhists and that in light of the claims and the obvious gaps in the information before it, the Tribunal was under a duty to enquire further in relation to the applicant’s claims about there being no reports of confiscated Buddhist lands returned and about his entitlement to inherit his grandfather’s land.  It was said that the applicant believed his claims were well founded (see Applicant M164 of 2002 v MIMA [2006] FCAFC 16 at [71] per Lee J with whom Tamberlin J agreed) so that it was incumbent on the Tribunal to use its investigative powers under s.427(1)(d) to ascertain the scope of the now-defunct law and whether properties owned by other minority groups were confiscated and to investigate whether the applicant was entitled to inherit his grandfather’s land. It was submitted that the need to investigate further was obvious, given the paucity of evidence disputing the applicant’s claims and the adverse inferences drawn from the country information (see Lee J in Applicant M164 of 2002 at [76]). It was also submitted (beyond the grounds in the further amended application) that the Tribunal had failed to afford the applicant a fair hearing as contemplated by the Act and thereby committed jurisdictional error notwithstanding any alternative basis that may be found in support of the Tribunal’s decision (cf VEAL at [18]).

9. After the first respondent filed supplementary submissions, the applicant conceded that there was no general duty on the Tribunal to make enquiries, but asserted that the manner in which the Tribunal made its decision about whether the enemy property law applied to Buddhists (by considering the position in relation to Hindus) was “so devoid of any plausible justification that no reasonable person could have taken this course” (see Prasad v MIEA (1985) 6 FCR 155 at 169 per Wilcox J and see SZEJF v MIMA [2006] FCA 724 at [53] per Rares J).

10. The applicant argued that it could not be asserted that there was evidence before the Tribunal to assist it in determining how to deal with the relevant question (cf Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]) and that the answer given by the applicant husband in response to the Tribunal’s prompting as to whether the enemy property law applied to Buddhists, that is, (that there were “no reports”) afforded a perfect opportunity for the Tribunal to investigate that claim further.

11. It was also said that Prasad was not authority for the proposition that the onus was on the applicant to show there was information readily available to the Tribunal. Wilcox J had stated at [169]:

    Equally [a decision] is exercised in an improper manner if the decision-maker makes his position – which perhaps in itself, reasonably reflects the material before him – … for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. [emphasis added]

12. It was contended that the duty to enquire was obvious, given that the Tribunal was prepared to draw adverse inferences from material before it on grounds that were said to be slight.  The applicant submitted that the basis for the Tribunal’s reliance on country information indicating that the Acts of 2001 and 2000 sought to address earlier acquisition of Hindu land to refute the applicant’s claim that land owned by his grandfather which he would inherit had been confiscated was slight, given that the applicant was a Buddhist.  It was said that a reasonable person would not have expressed a reasoning process in the way that the Tribunal did, without further investigating whether land owned by Buddhists was previously confiscated by the government as asserted (see SZEJF at [44], [46], [53] and [54], Prasad at [169] – [170] and WAIJ v MIMIA (2004) 80 ALD 568 at [21]).

13. Counsel for the first respondent submitted that the Tribunal had made general findings in relation to the claim that the applicant suffered persecution by reason of being “one of the worst victims of Enemy Property Law” which led to their loss of hereditary estates to local Muslim thugs, in that the Tribunal did not accept that the applicant had suffered serious harm amounting to persecution for a Convention reason on this basis or that he had a well-founded fear of serious harm for a Convention reason on this basis. 

14. In these circumstances, it was submitted that the Tribunal had no general duty to make enquiries or prompt further elaboration as to whether Buddhists were persecuted by reason of the enemy property law (see MIMIA v SGLB (2004) 78 ALJR 992 at 142 and 143; NAIZ v MIMA [2005] FCAFC 37 at [68]; Mohammad v MIMA [2005] FCAFC 47 at [24]; WAGJ v MIMA [2002] FCAFC 277 at [21] – [25]; Seyfarth v MIMA [2004] FCA 1713 at [95] and SZATG v MIMA (2005) 215 ALR 258 at [36]).

15. In any event, it was pointed out that the Tribunal had, on its own account, prompted the applicant husband twice for further elaboration as to whether enemy property law applied to Buddhists.  It was submitted that the Tribunal was not obliged to go further and use its investigatory powers and that the applicant had not shown that there was information readily available to the Tribunal that would have assisted its assessment of the Enemy Property Law (see Prasad at 563) or that the circumstances were such that the need for further enquiry was obvious and that there was no impediment to the conduct of such an enquiry (Applicant M164 of 2002 at [76]).

16. It was pointed out that in the present case the Tribunal could not be said to have ignored material that formed part of the Departmental file that went to the matters in question.  Nor had the Tribunal made speculative findings without support from the material before it (Prasad at 559 and 563; M164 at [83] – [90], [117] – [118]). It was submitted that the relevant Tribunal finding was based on evidence that suggested that the Vested Property Return Act sought to address the earlier acquisition of Hindu land, that the Tribunal put this to the applicant for comment but was not satisfied by the answer and that the resulting findings based on the material before the Tribunal was thereby not perverse and was not the result of a hunch, gut feeling or instinct of the Tribunal (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 365 and WAIJ at [20] – [22]).

17. On this basis it was said that no duty arose to enquire because the Tribunal findings were based on evidence before the Tribunal regarding the Enemy Property Laws and the inability of the husband to show that the laws applied to Buddhists.  While the Tribunal could have investigated further it was not obliged to do so. 

Reasoning

1. No jurisdictional error is established, either on the basis of a failure to deal with an integer of the applicant’s claim or on the wider basis pursued in submissions. 

2. The first difficulty for the applicant in relation to this ground is that the Tribunal did not simply prefer independent country information.  It did prefer such information in relation to the effect of the Enemy Property Law and the 2000 and 2001 legislation (in that it found that it did not support the claims that Buddhist land had been acquired).  However, as the first respondent submitted, not only was the Tribunal not satisfied on the basis of the unsupported claims that the applicant had “suffered serious harm amounting to persecution for a Convention reason on this basis”, but also, critically, it was satisfied that if the applicant had a well-founded fear of serious harm for a Convention reason on this basis (“which now goes back several generations”) he would have sought refugee status in another country on an earlier visit.  In other words the Tribunal proceeded on this basis that, even if one accepted the applicant’s claims about acquisition of his grandfather’s land, his hereditary entitlement to that land and that no land had been returned to Buddhists under the Vested Property Return Acts (and even if this claimed fear was for a Convention reason whether religion or, as discussed in relation to ground 3, particular social group), nonetheless it was satisfied that the applicant did “not have a well-founded fear of serious harm for a Convention reasons on this basis.”  The Tribunal’s failure to be satisfied as to the existence of such a fear of serious harm was determinative.

3. There is no general duty on the Tribunal to make enquiries, either under the Migration Act 1958 (Cth) or as an incident of procedural fairness obligations (and see in any event s.422B of the Migration Act). Moreover, particularly in light of the general findings of the Tribunal, this is not a case which comes within the limited circumstances addressed in Prasad.  As pointed out by the first respondent, the applicant was given the opportunity to address this issue.  No duty to enquire arose because the findings were based, in part, on evidence before the Tribunal in relation to the scope of enemy property laws and the absence of evidence that the laws applied to Buddhists. 

Ground two

1. The second ground is that the Tribunal “constructively failed to exercise jurisdiction by failing to consider whether the fear that the applicant’s wife and daughter may be kidnapped for non-Convention reason such as part of an extortion attempt could amount to Convention-based persecution”.  The particulars are:

   (a)     The applicant claimed that hooligans tried to extort money from him and that the applicant had to pay them because “it was extortion and all business had to pay this, but also because he was involved in religion”.

   (b)     The Tribunal found that the applicant was a small businessman.

   (c) The Tribunal was unable to satisfy itself “that the essential and significant reason for the extortion and the attack on [the applicant] was because he was a Buddhist, of [sic] a leader of the Buddhist community.

   (d)     The Tribunal accepted “that the second named Applicant received some threatening telephone calls to pay the extortion money being demanded of them.”

   (e)     The Tribunal accepted that the applicants “chose not to approach the police about these extortion claims … because the extortionists threatened to kidnap their daughter and harm the applicant’s wife if they did so.

2. The applicant submitted in relation to this ground (and also grounds 3 and 5) that the Tribunal fell into error by failing to identify whether the particular social group the applicant and his wife belonged to made them susceptible to extortion claims.  Reference was made to what was said by Finn and Dowsett JJ in Rajaratnam v MIMA (2001) 62 ALD 73 at 85:

   [46]  As this Court has indicated on a number of occasions, care needs to be taken when considering whether extortion has been practised upon a person for a Convention reason … What needs to be recognised, though, is that the reason why the extorting party has that interest may or may not have a foundation in a Convention reason.  The extorted party may have been chosen specifically as a target 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.  Or, conversely, the person may have been selected simply because of his or her perceived personal capacity to provide the particular advantage sought and for no other reason or purpose. 

   …

3. It was noted that their Honours had also stated (at [48]) that:

   “… the correct character to be attributed to extorsive conduct practised upon an applicant for refugee status is not to be determined as of course by the application of the simple dichotomy:  ‘Was the perpetrator’s interest in the extorted personal or was it Convention related?’  In a given instance the formation of the extensive relationship and actions taken within it can quite properly be said to be motivated by personal interest on the perpetrator’s part.  But they may also be Convention related.  Accordingly any enquiry concerning causation arising in an extortion case must allow for the possibility that the extorsive activity has this dual character.”  

1. (Also see Moore J (in dissent) at [10] recognising that personal attributes did not remove the possibility that race or ethnicity may be a factor influencing conduct.)

2. In this case it was said that while the Tribunal found that the extortion attempts made against the applicant and his wife were for criminal and hence non-Convention reasons, such a finding could not stand until the Tribunal had correctly identified the particular social group to which the applicant and his wife belonged.  It was said that as the Tribunal failed to identify the particular social group, its findings about the reasons for the extortion attempts were vitiated.  In this respect, as in other respects, it was contended that the Tribunal had failed to consider an integer of the applicant’s claims, namely that he was persecuted by reason of his membership of a particular social group (that is, as a “Buddhist businessman”) and by reason of his hereditary estate being lost to “local Muslim thugs” as discussed further in relation to ground 3. 

Reasoning

1. The applicant’s claims, as elaborated on in oral submissions, appear to relate both to the reasons for the extortion (and whether there was a Convention-based motivation) and the reasons for the applicant’s failure to approach the police (and hence the reasons for any absence of state protection). 

2. As to the former, as Finn and Dowsett JJ observed in Rajaratnam at [46]: “care needs to be taken when considering whether extortion has been practised upon a person for a Convention reason”.  Their Honours stated:  “The need for this is apparent enough.  In the usual case of extortion the extorting party will be acting for a self-interested reason.”  It was in this context that it was nonetheless recognised in Rajaratnam that an extorted party may be chosen as the target of extortion for a Convention reason or because of the known susceptibility of a vulnerable particular social group to which the target belongs. 

3. The Tribunal cannot be said to have failed to recognise the possible duality of extensive activity in a manner constituting jurisdictional error.  Rather, on the evidence before it, it was not satisfied that the essential and significant reason for the extortion was Convention related.  Moreover it was satisfied that it was non-Convention related criminal behaviour. 

4. The Tribunal considered the applicant’s claims that he was subject to extortion and an attack by those he believed were Muslims.  It recorded that at the hearing the applicant had claimed it was “hooligans” who had tried (with partial success) to extort money from him and that when asked what he paid them for, the applicant replied that it was extortion and all business had to pay this, and also because he was involved in religion.  When asked if this was just the price of doing business in Bangladesh, the applicant replied in the affirmative.

5. It was on the basis of all the evidence, including the absence of a claim in the protection visa application that the threats seeking money after the applicant was first attacked were for a Convention-related reason, the applicant’s failure to change address, get a silent number or report the matter to the police, and the fact that he had paid the extortionists, although less than they demanded, as well as the oral evidence, that the Tribunal found that it was not able to satisfy itself that the “essential and significant reason” for the extortion and attack on the applicant was for any Convention-related reason This requirement (in s.91R(1)(a)) post-dates the decision in Rajaratnam.  Given the applicant’s acknowledgment that “all businesses had to pay” and that the extortion was “just the price of doing business in Bangladesh” it cannot be said that the Tribunal erred in the manner in which it considered whether the essential and significant reason for the extortion was Convention related. 

6. It was not necessary, as the applicant seems to suggest, for the Tribunal to consider the possibility that the applicant may have belonged to a particular social group (such as “Buddhist businessmen”) in making these findings.  The Tribunal was satisfied that, if the applicants had been subjected to or threatened with serious harm amounting to persecution for a Convention related reason, they would have at least moved house.  It also had regard to their failure to obtain a silent number, their reason for failing to approach the police and, importantly, the fact that the applicant did not seek to leave or obtain protection outside Bangladesh on his past travels because of the attack or threats.  Based on all of these factors the Tribunal made a number of findings which sufficiently addressed the issue of a Convention nexus. 

7. Not only was the Tribunal not satisfied that the essential and significant reason for the incidents, extortion and threats was Convention related (as discussed above) but also it was not satisfied that the authorities refused to act in response to such incidents for a Convention-related reason.  Hence it was satisfied that there had not been a breakdown in effective state protection. 

8. It addressed the claimed fear that the applicant’s wife and daughter may be kidnapped if the police were approached.  It was not claimed by the applicant that he had a well-founded fear of persecution by the extortionists for a Convention reason because they threatened his wife and daughter.  It was not claimed that the extortionists used threats to the applicant’s wife and daughter to carry out their extortion.  Rather, the claims were that they would be harmed if the applicant reported the extortion and attack to which he was subject to the police.  The Tribunal accepted that neither the applicant nor his wife chose to approach the police about the extortion threats.  It found that this was “not because they were afraid of the police or other authorities or were concerned that their complaints would not be actioned because they were from the Buddhist minority, but rather because the extortionists had threatened to kidnap their daughter and harm the applicant’s wife if they did so”.  Consistent with this conclusion it noted that the applicant’s brother was willing to go to the police about the office break-in in 2005. 

9. Thus, this is not a case where the Tribunal had to, but failed to, consider the possibility that the state was involved in persecution by withholding protection for a Convention reason in relation to harm occasioned by others for a non-Convention reason.  No jurisdictional error is established by ground 2. 

Grounds 3 and 5

1. The third ground in the further amended application is that the Tribunal made a jurisdictional error of law by failing to deal with an integer of the applicant’s claim.  The particulars are as follows:

   (a)     The applicant claimed that he suffered persecution by reason of extortion claims being made against him by reason of his being a businessman and because he was involved in religion.

   (b)     The Tribunal was not satisfied that the essential and significant reason for the extortion was because the applicant was a Buddhist “or for any other Convention-related reason”.

   (c) However, the Tribunal did not consider whether the extortion claims were made against the applicant because he was, cumulatively, a Buddhist businessman.

2. Ground 5 relies on the same particulars.  It is that the Tribunal committed jurisdictional error by failing to consider whether the extortion claim may have, in the context of the applicant’s particular social group and the political environment in Bangladesh at the time of decision, the characteristics of individual targeting motivated by Convention reasons. 

3. It is convenient to consider both grounds together, consistent with the approach taken in the applicant’s submissions.  First, the applicant submitted that the Tribunal failed to address whether the delegate erred in finding that there was not a real chance the applicant would be persecuted because he was a Buddhist businessman.  It was said that it found that the applicant’s businesses were not targeted because he was a Buddhist but made no finding about whether the applicant himself was targeted because he was a Buddhist businessman (cf Applicant S v MIMA (2004) 217 CLR 387 and Dranichnikovv MIMA (2003) 197 ALR 389). It was submitted that the Tribunal failed to appreciate that the applicant’s membership of such a particular social group might provide a Convention reason independently of his claims concerning his business interests (see SZEEX v MIMIA [2005] FMCA 359 at [28]).

4. The applicant submitted on the material before the Tribunal, including the oral evidence given at the hearing, that it was “tolerably” clear that his claimed fear of persecution was by reason of a membership of a particular social group being Buddhist businessmen (cf NAVK v MIMIA [2004] FCA 1695 at [15] and SZEEX at [33]).  Hence it was submitted that the Tribunal’s failure to consider critical integers of the applicant’s claims amounted to jurisdictional error in circumstances where the review required findings about whether the applicant faced a real chance of persecution by reason of membership of a particular social group.  It was said that the Tribunal had failed to consider this claim at all (see SAAD v MIMA [2003] FCAFC 65 at [40]). In particular it was argued that the Tribunal constructively failed to exercise jurisdiction because it had not properly appreciated the “duality” of the applicant’s extortion claim. It accepted that its finding about extortion excluded a Convention reason, but it did not consider the implication of its findings as to the immediate reason for the selection of the applicant as a target of extortion. In this way it was said that the Tribunal failed to address a critical issue, being the potential for a particular social group to be persecuted by reason of extorsive behaviour of various government and non-government groups (SZEPY v MIMA [2006] FMCA 31 at [18].

5. It was also submitted generally that, contrary to the assertions for the first respondent, the characterisation of a particular social group claim was not dependent on whether there was evidence that the group was recognised or perceived by the society as a cognisable group within the society (Applicant S at [50] per Gleeson CJ, Gummow and Kirby JJ, [97] – [98] per Callinan J and also see VXAJ v MIMA [2006] FMCA 234 at [17]). It was pointed out that the Tribunal had clearly stated that it had regard to the delegate’s decision, which acknowledged that the applicant had articulated a claim that he was a member of a particular social group of Buddhist businessmen.

6. Counsel for the first respondent addressed generally the issue of particular social group, the contention that the Tribunal failed to make findings as to integers of the applicant’s claims and the question of whether it failed properly to consider his relocation.  It was suggested that the applicant’s submissions were misconceived.  It was said that the Tribunal was obliged only to set out findings on questions of fact which it considered to be material to the decision which it made and the reasons it had for reaching that decision (see MIMA v Yusuf (2001) 206 CLR 323) so that where a finding was not made in the reasons, the only inference that could be drawn was that it was not material to the Tribunal’s decision. It was submitted that this did not necessarily lead to the conclusion that the matter was not considered. It was also pointed out that where the Tribunal made general findings as to the applicant’s claims, it was not obliged to make findings in respect of each and every piece of evidence relevant to that finding. Nor was it obliged to consider a claim not expressly advanced by the applicant unless it was apparent on the face of the material before the Tribunal. (NABE v MIMIA [2004] FCAFC 263 at [55] – [63]).

7. It was argued that the assertion that there was an unarticulated claim that the applicant husband suffered persecution by reason of his membership of a particular social group of Buddhist businessmen was not supported by the material before the Tribunal and did not squarely arise on such material, as the material did not demonstrate that Buddhist businessmen shared certain common characteristics sufficient to support the conclusion that those persons constituted a particular social group for the purpose of the Convention or that the applicant suffered persecution by reason of his membership of such social group.  It was said (see NABE at [58]) that the Tribunal was not required to speculate in the absence of evidence about whether the applicant would suffer persecution by reason of his membership of that particular social group and that such ground must fail.

8. In particular, the first respondent submitted that for the Tribunal to be obliged to consider an unarticulated claim of persecution by reason of membership of a particular social group, there had to be material from which it was apparent that there were “common characteristics” of members of that group that set them apart from society at large and that the claimed persecution was by reason of the applicant’s membership of that particular group (Applicant A v MIEA (1997) 190 CLR 225 at 233 – 4, 240 – 1, 249 and 263 – 4). It was submitted that the Tribunal was not required to speculate on every personal characteristic or combination of personal characteristics of an applicant as a basis for membership of a particular social group where there was no evidence of social groups with those characteristics or combination of characteristics.

9. Moreover, it was submitted that the Tribunal had made general findings as to whether the applicant had a well-founded fear of Convention-related persecution by reasons of his membership of the Buddhist community or Buddhist minority and also general findings as to whether he had a well-founded fear of Convention-related persecution in respect of his business activities.  It also made general findings in relation to the applicant’s claims and circumstances cumulatively, but was not satisfied that the applicant had a well-founded fear on Convention grounds.  It was submitted that in such circumstances the Tribunal was not obliged to make the findings in respect of every possible combination of claims and circumstances, whether articulated or unarticulated, as a possible basis for a well-founded fear on Convention grounds.

Reasoning

1. The essence of the applicant’s claim is that the Tribunal was required to but did not consider whether the applicant had a well-founded fear of persecution by reason of his membership of a particular social group of Buddhist businessmen. 

2. It is clear that if a Tribunal fails to make a finding on “… a substantial clearly articulated argument relying upon established facts” such a failure may give rise to a jurisdictional error whether considered as a failure to accord natural justice (Dranichnikov v MIMA (2003) 197 ALR 389 at [24]) per Gummow and Callinan JJ and at [95] per Hayne J, a constructive failure to exercise jurisdiction (ibid at [25]), or, as the Full Court of the Federal Court suggested in NABE v MIMIA (No.2) 219 ALR 27 at [55] – [63], a failure to carry out the review.

3. However, unlike the situation in Dranichnikov, in this case it is not apparent that the applicant’s claim was expressed in terms of membership of a particular social group such as “Buddhist businessmen” such that it can be said that the Tribunal misstated and failed to deal with the case presented to it. 

4. Nor, for the reasons given below, is this a case in which the evidence and material accepted by the Tribunal raised a case not articulated by the applicant to the effect that he had a well-founded fear of persecution as a member of the particular social group of Buddhist businessmen in Bangladesh in the sense considered in NABE at [57] – [62].

5. First, in his protection visa application, while the applicant described his past employment as a business proprietor, he claimed he left Bangladesh to avoid persecution for his religious belief and membership of a minority religion.  In his accompanying statutory declaration he reiterated that his fear was a fear for his religious belief (as a Buddhist) adding that members of the Buddhist community “are being deprived of leading their normal life and they are harassed and intimidated in every sphere of their lives.  I shall also face the same situation if I am to go to Bangladesh.”

6. In other words the express claim was that Buddhists in all walks of life would face persecution.  In this context the applicant claimed that he became known for his profile in the Buddhist community, that “since I started my business [as a contractor in 1990] I have suffered enormously for my religious background… I was discriminated in running my business by officials who are of Muslim belief.  Finally I failed to run my business.”  He later claimed the discrimination forced him to fold his business, although he then described his prosperity in his post-1997 indenting business. 

7. After elaborating on his claims about persecution of Buddhists, the applicant referred to his substantial involvement at the Buddhist welfare organisation and consequential popularity in the area and community.  In that context he continued:

   My prosperity in the business and also my leadership profile made me eyesore of my competitor who are Muslim by faith.  It is very difficult for them to tolerate me as their competitors as I am the member of a minority group.  They were trying in different aspects to stop my career in business … I received non-cooperation and discrimination in every aspect for my religious belief.”  (emphasis added)

8. He then claimed that as a result of his “leadership profile” he came to the attention of the government authority and the “fundamentalist Muslims” and went on to describe his claims about an attack, extortion attempts, a business dispute he saw as victimisation “at the inspiration of other Muslim businessmen” and reiterated his claims based on his religious profile, as a leader of the Buddhist community and member of a minority religion. 

9. These claims do not raise “squarely” an unarticulated claim that the applicant suffered persecution by reason of his membership of a particular social group of Buddhist businessmen (cf SZEEX v MIMIA [2005] FMCA 359 where the applicant’s claims “clearly raised the suggestion that he was at continuing risk due to characteristics shared with a group of Nepalese businessmen” (at [18])). 

10. It is the case that the delegate of the first respondent referred in his decision to the applicant’s business and his claims of disputes with buyers because of his religion and did not believe the applicant “would be persecuted because he is a Buddhist businessman as he was involved in a business since 1990”.  In written submissions it was argued for the applicant that the Tribunal erred in failing to address “whether the delegate erred in finding there is not a real chance the applicant would be persecuted because he is a Buddhist businessman.”  However, as Smith FM pointed out in SZEEX at [20], it is not the Tribunal’s function to review the delegate’s reasoning (as distinct from the “decision”).

11. Further, it is apparent from the Tribunal hearing that the Tribunal in fact gave the applicant the opportunity to articulate any claims relating to his business (or, indeed, his status as a Buddhist businessman) stating:

    Now I was uncertain from your claims because in your protection visa you said that you experienced discrimination because you were a Buddhist and your business was forced to fold or close before coming to Australia.  Which business was forced to close?

12. The applicant commenced his response by stating “Business is business but … I was Buddhist, I am a Buddhist and I was involved with a Buddhist organisation”, and then stated that someone was killed and that he was involved with that incident. 

13. The Tribunal member questioned the applicant further about the closure of his supplying business.  However nothing the applicant said raised a claim such as is contended for in the further amended application. 

1. Later in the hearing the applicant claimed that action was taken against him for his leadership profile and at the same time he was operating a business earning good money and he was subject to extortion.  It was in that context that he explained that all businessmen were subject to extortion, that because he was involved in religious activities as well they tried to demand more, but then agreed that such extortion was part of the price of doing business in Bangladesh. 

2. Hence the applicant clarified that his concern was as a Buddhist.  His concern about discrimination in his business was, in this context, raised as the “sphere of life” he happened to be in and thus an area in which he claimed he was persecuted.  Given the manner in which the applicant elaborated on his claims after the delegate’s decision, it cannot be said that a claim that he suffered persecution by reason of his membership of a particular social group of Buddhist businessmen was squarely raised on the material before the Tribunal.  As the Full Court of the Federal Court stated in NABE at [60] and [62] “Whatever the scope of the Tribunal’s obligations it is not obliged to consider criteria for an application never made.” 

3. Moreover it is notable that insofar as the claims made by the applicant relied on his “leadership profile” in the Buddhist community as well as his prosperity, the Tribunal rejected his claim to have such a profile. 

4. It has not been established that the Tribunal failed to deal with an integer of the applicant’s claim. 

5. As to ground 5, which relies on the same particulars, as set out above the Tribunal considered the motivation of the extortionists but was not satisfied that the “essential and significant reason” was because the applicant was a Buddhist, a leader of the Buddhist community or for any other Convention reason. 

6. The Tribunal clearly considered whether there was a Convention-related motivation for the extortion, but the material did not “squarely” raise a claim that the applicant was targeted as a member of a particular social group of Buddhist businessmen, as distinct from a Buddhist who, as an individual businessman, was open to extortion.  In this context, the Tribunal rejected the claim that the applicant’s religion was the “essential and significant reason” for the extortion. In light of s.91R(1) this was the correct approach. What the Full Court of the Federal Court said in Rajaratnam about a dual motivation has not only to be seen in light of s.91R(1) but also in view of the fact that there was no suggestion on the material before the Tribunal that membership of a particular social group of Buddhist businessmen of known susceptibility was a motivating factor for the extortion. No jurisdictional error is established on this basis.

Ground four

1. The fourth ground is that the Tribunal committed jurisdictional error by misapplying the test of relocation.  The particulars are:

   (a)     The Tribunal was satisfied that if “for any reason such as a fear that his wife and daughter may be kidnapped or killed for non-Convention reason … it would be reasonable for him to … move elsewhere in Bangladesh.

   (b)     The Tribunal did not consider whether it would be reasonable for the applicant to relocate if his fear was related to a Convention reason – ie, the Tribunal was distracted from the critical consideration of whether the applicant has a well-founded fear of future persecution should he be returned to his own country.

   (c) The Tribunal was required to consider whether membership of the particular social group, namely, Bangladeshi Buddhist businessmen marked the applicant for future persecution if he were refouled to Bangladesh.

2. The applicant submitted that the Tribunal’s findings as to relocation were vitiated because the Tribunal was distracted from considering the critical question of whether his particular social group of Buddhist businessmen marked him as a target for persecution, before it made a finding that it was reasonable for him to relocate and/or that there was effective state protection.  It was acknowledged that success in this ground depended on success in relation to the preceding grounds concerning identification of a particular social group.  It was also contended that, because of the jurisdictional errors in relation to the applicant’s claim to fear persecution by reason of extortion attempts and membership of a particular social group, the Tribunal’s relocation finding could not stand, given uncertainty as to whether the Tribunal properly considered whether the applicant had a well-founded fear of persecution if returned to Bangladesh (cf SZCBT v MIMA [2007] FCA 9 at [20]).

3. However, the other grounds have not been made out and, as the first respondent submitted the consideration of reasonableness of the applicant’s relocation was made in a context where the Tribunal had already found that the claimed fear of persecution based on extortion and threats was not well founded and that the threats and extortion were non-Convention criminal activity.  There was no error in the Tribunal considering relocation in the context of its other findings (MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282). No error has been established in those other findings and hence this ground must fail.

4. As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  5 April 2007