SZJVD & Ors v Minister for Immigration & Anor
[2007] FMCA 817
•1 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJVD & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 817 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – status – refugee status – refusal – visa – protection visa – an isolated event of selective persecution amounts to systematic conduct – open to the Tribunal to conclude there was no real chance of it being repeated – reasonable to relocate. |
| Migration Act 1958, ss.91R, 91X |
| Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1 SZHJR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 203 SZCUW v Minister for Immigration & Multicultural Affairs [2006] FCA 1631 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 |
| Applicants: | SZJVD, SZJVE & SZJVF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3668 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 1 May 2007 |
| Date of Last Submission: | 1 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr. B. Zipser |
| Counsel for the Respondents: | Ms. L. Clegg |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3668 of 2006
| SZJVD, SZJVE & SZJVF |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed in Court on 1 May 2007, the applicants seek review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 23 October 2006 and which affirmed earlier decisions of delegates of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 23 October 1999 and 9 January 2001 refusing the applicants’ protection visa applications.
The Tribunal decision the subject of these proceedings is the third such decision relating to the applicants. There were previous Tribunal decisions dated 30 November 2001 and 9 March 2005 which were quashed by orders of this Court dated 5 March 2004 and 28 June 2006 respectively.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicants’ names.
Background facts
Only the first applicant has made specific claims for a protection visa, his wife and child relying on their membership of his family. For convenience, therefore, the first applicant will be referred to as the applicant. The Tribunal described the applicant as follows:
… the applicant is a national of Bangladesh who was born in 1963. He is Muslim. He has completed 13 years of education and was a self-employed businessman before he came to Australia. He lived at the same address in Bangladesh from 1989 until his departure from that country. (Court Book (“CB”) page 185).
The applicant claims to fear future persecution in Bangladesh because of his political opinions. The applicant’s claim was that:
a)he was a member of the BNP in Bangladesh and suffered harm at the hands of his Awami League opponents;
b)he fears his old political opponents in his locality; and
c)he resigned from BNP in 2003 to join BDB but claims fear of persecution by the BNP-led government and BNP supporters for the reason of his membership of BDB.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-14 of the Tribunal’s decision (CB 185-195). Relevantly, they are in summary:
a)the applicant was born into a politically-oriented family. His family had a great contribution in the war of independence in 1971. His father and uncle influenced a young generation to join the Liberation war in their region;
b)on 16 December 1971, a group of “Awami goons” raided the applicant’s house and forcefully took his father and two of his uncles and killed them;
c)the applicant claims that his political opponents “tortured my mother mentally”. A group of Awami thugs visited their house routinely and ordered them out of the house and forced them to stay outside all night. He claims that “they made cruel jokes with our family”. His mother passed away within nine months. The applicant claims that the continued pressure and threats by the Awami thugs compelled them to live in various places at night;
d)when the applicant was admitted into Dhaka Polytechnic Institute in 1982, he obtained an opportunity at the college to be involved in politics. Thus he joined the Bangladesh Jatiota Badi Chatradal (student wing Bangladesh Nationalist Party). He was associated with a number of student leaders in the college and they influenced him to motivate students in politics;
e)the applicant became the organising secretary of the Jatiotabadi Chatradal Polytechnic Branch, Dhaka in 1985. The country was ruled by President Ershad at that time. The applicant led a number of demonstrations against President Ershad. All the political parties were also united to oust President Ershad from power because his corruption, nepotism and malpractice ruined the country’s administration;
f)after completing his diploma in 1988, the applicant continued his political activities with the BNP. In 1989 he was elected as the joint secretary of the BNP, Khilgaon Thana branch. When he became the joint secretary of the Thana committee, a political movement was raised against President Ershad and the applicant participated in the movement;
g)on 12 June 1989 a parliamentary election was held in Bangladesh. During the election the applicant campaigned for his local candidate, Mirza Abbas, who ultimately won the election. The BNP won the majority of the seats in parliament and formed the government with the help of the Jamat-e-islami for the second time in Bangladesh’s history;
h)when the Awami League was defeated by the BNP, they tried to oust the BNP from power. They resigned from parliament with fake issues and organised non-cooperative movements along with other political parties;
i)the applicant protested the Awami League’s unlawful activities and was attacked by them “a number of times”. There were daily general strikes which began to ruin the economic structure of the country. Eventually, Begum Zia transferred power to a caretaker government for the sake of the nation;
j)the Awami League came to power through a parliamentary election on 12 June 1996. The applicant again campaigned for Mr Mirza Abbas and states that “on a number of occasions I faced their brutality”. On 3 August 1996 his house was ransacked and one of his brothers were beaten by a group of Awami men. The applicant claims to have informed the police about the incident, but “failed to obtain any remedy”;
k)on 23 September 1998, a group of Awami thugs attacked him from behind. They beat him severely and he was injured and admitted into a private clinic. He was released form the clinic after a few days. Again, when the applicant reported the incident to the police, he failed to receive any response from them;
l)on 17 February 1999 when the applicant was returning home from Mauchak Market with his wife, a group stopped their rickshaw and asked the applicant to go with them. They started punching his face and kicking him “non-stop” until he “lost my sense”. He was sent to a private clinic. When the applicant’s brother went to the police station to file a report, he was informed that a case had already been filed against the applicant;
m)in his oral evidence to the Tribunal on 11 October 2006, the incident in February 1999 was described in the following way:
The applicant was asked about the incident of assault in February 1999. He said the rickshaw he and his wife were travelling in was stopped by a group pf [sic] Awami League supporters after an Awami League meeting had concluded in that area which was close to his own locality. He was teased and was asked mocking questions such as “have you become a big leader?” He was ultimately let go off after his wife cried and pleaded with the men. (CB 191).
n)following the abovementioned incidents, the applicant decided to leave the country with his pregnant wife;
o)after an assault in February 1999, the applicant went to the police to lodge a complaint and found that a charge had been laid against him relative to his involvement in violence at a meeting at which he was not present. All this trouble had come from people in the applicant’s village who had known his family to have been opposed to Bangladesh’s independence in 1971;
p)the applicant resigned in writing from the BNP in 2003 and joined the BDB in late 2003 because he was a follower and supporter of the former President of Bangladesh Dr. Chowdhury. The applicant participated in a demonstration in front of the Bangladeshi High Commission in Canberra in protest at an attack on Dr. Chowdhury on 29 March 2004.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
Fear of Awami League
a)it was clear to the Tribunal from the totality of the applicant’s evidence that his activities were highly localised and confined to the area where he had lived for many years. The applicant’s own description of his political activities and their limited geographical scope led the Tribunal to conclude that he was not engaged in political activities at a level that gave him a significant political profile in Bangladesh;
b)the Tribunal was not satisfied that the attack on the applicant’s house in 1996 involved systematic and discriminatory conduct on the part of the applicant’s political opponents or that there was a real chance of him suffering similar harm at the hands of Awami League supporters in the reasonably foreseeable future, noting:
i)the attack occurred in a period which saw two general elections and was marked by widespread violence amongst political parties and their student wings;
ii)the applicant continued to live at his house until 1999 and did not claim that it was attacked again before his departure although he had remained politically active;
c)the applicant was assaulted in 1998 by unknown attackers whom he assumed to be Awami League supporters on the basis that he had no other enemies and thought he must have been followed by Awami League supporters from his locality. The Tribunal did not find that the applicant’s conjecture was a satisfactory basis for finding that the assault on him was carried out by Awami League supporters, noting that he did not claim to have been assaulted again and in this manner in the subsequent months when he continued to work at the same place and reside at the same address;
d)the Tribunal was not satisfied that the incident in February 1999, when he said that the rickshaw he and his wife were travelling in was stopped by a group of Awami League supporters during which he was teased and asked mocking questions, amounted to systematic and discriminatory conduct and that the chance of him suffering similar harm in the reasonably foreseeable future was real, noting that on that night the applicant found himself at the wrong place at the wrong time and the attack on him was an isolated incident;
e)based on the applicant’s profile, his evidence regarding his past experiences of harm and other evidence before it, the Tribunal was not satisfied that there was a real chance that the applicant would suffer persecution for reason of his past membership of BNP if he were to return to Bangladesh now or in the reasonably foreseeable future;
False case
f)with regard to the false case which the applicant claims was lodged against him, the Tribunal was not satisfied that the police had taken the case seriously or had a genuine interest in the applicant. It found that the false case did not give rise to any real chance of persecution in the reasonably foreseeable future;
Relocation
g)the Tribunal was satisfied that it was reasonable for the applicant to relocate to a different part of Bangladesh if he remained fearful of his old political enemies, noting:
i)the applicant’s claims made it clear that all his political activities were highly localised and he fears his old locally-based political opponents;
ii)the Tribunal did not accept that the applicant will be found by his old political opponents anywhere in a densely populated country like Bangladesh;
iii)the applicant had indicated that he is financially well off in Bangladesh and did not claim that he would find it financially or otherwise difficult to relocate;
BDB
h)the Tribunal was of the view that the applicant’s BDB membership and related activities in Australia, including his participation in the 2004 demonstration in Canberra, were subject to s.91R(3) of the Act, noting:
i)the applicant’s claim to have joined BDB and to fear persecution by the BNP-led government was self-serving and a product of his previous claim having being weakened as a result of BNP coming into power in 2001 and his strong desire to remain in Australia;
ii)it was odd that after two decades of devotion to BNP the applicant would suddenly switch allegiances and support a breakaway party in Australia;
iii)the applicant was unable to provide a persuasive reason as to why he had suddenly become dissatisfied with the BNP-led government;
iv)the applicant was unable to provide information about the party’s policies and goals beyond banal generalities;
v)the Tribunal was not satisfied that the applicant’s membership of BDB and his participation in BDB activities in Australia had been otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Convention with the result that the Tribunal was required to disregard that conduct engaged in by the applicant in Australia;
i)the Tribunal was, in any event, not satisfied that there was a real chance of the applicant suffering harm in Bangladesh amounting to persecution for reason of his affiliation with and activities in support of BDB, noting:
i)independent country information did not give an overall impression that, at the grassroots level, BDB supporters had been subjected to systematic harm or harassment by the government or BNP supporters;
ii)while violence amongst political parties was an unfortunate reality, BDB was a legal party and operates openly;
iii)in the Tribunal’s view if the applicant were to engage in political activity at the same level he had in Australia, it was not satisfied that there was a real chance that he would face harm as a result;
Human rights activities
j)the Tribunal was not satisfied that the applicant was a member of “several organisations” or that he had been involved in any related human rights activities that would give rise to a real chance of persecution in Bangladesh, noting:
i)he did not raise his claim of affiliation with any human rights organisations at any stage in the review other than his written submissions of 6 September 2006;
ii)he did not elaborate on his “human rights activities” in that submission and did not pursue this claim at the hearing on 11 October 2006;
iii)at that hearing, although he was expressly asked about his fears in Bangladesh, the applicant did not express any fear arising from his membership of any organisation other than BNP and BDB;
The applicant’s family
k)the Tribunal was not satisfied that the political history of the applicant’s family was such that the applicant would be persecuted in Bangladesh for reason of his membership of his family or its real or perceived anti-independence views, noting:
i)the applicant’s evidence did not suggest that his experiences in Bangladesh were for any reason other than his past membership of BNP; and
ii)it would be reasonable to expect that the applicant’s two brothers and five sisters whom he claimed at the hearing to be living in Bangladesh would have experienced some degree of hostility or adverse attention but this was not claimed by the applicant.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
1. The Tribunal, having accepted that the applicant was attacked in February 1999, was “not satisfied that this incident amounts to systematic and discriminatory conduct and that the chance of the applicant suffering similar harm in the reasonably foreseeable future is real”. The Tribunal fell into jurisdictional error in making this finding.
2. The Tribunal, having accepted that the applicant’s house was attacked and ransacked in 1996, was not “satisfied that this incident involves systematic and discriminatory conduct on behalf of the applicant’s political opponents and that there is a real chance of him suffering similar harm at the hands of Awami League supporters in the reasonably foreseeable future”. The Tribunal fell into jurisdictional error in making this finding.
In his submissions to the Court the applicant raised as an additional issue that the Tribunal’s finding that it was reasonable for the applicant to relocate to a different part of Bangladesh was “not unaffected” by the jurisdictional error identified by the grounds pleaded in the amended application, namely, that the Tribunal misdirected itself as to the proper meaning of “systematic”.
Dealing with each of these grounds in turn:
February 1999 issue
The applicant submitted that the Tribunal’s finding that the February 1999 rickshaw incident was an isolated one was the basis for its lack of satisfaction that it was an incident amounting to systematic and discriminatory conduct. It was submitted that the Tribunal had, in effect, said that the conduct could not be characterised as systematic because it had occurred only once and because the attackers did not seek out the applicant, he was merely fortuitously passing by.
The applicant’s case is that the Tribunal misapplied s.91R(1) of the Act which provides:
For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) …
(b) …
(c) the persecution involves systematic and discriminatory conduct.
Prior to the insertion of s.91R into the Act on 1 October 2001,
McHugh J discussed the meaning of “systematic conduct” in Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at 32 [99] saying:
It is an error to suggest that the use of the expression "systematic conduct" in either Murugasu or Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or "must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic." The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant's nationality is the understandable choice of that person. (footnotes omitted).
Although Ibrahim’s case pre-dates the insertion of s.91R into the Act, it and the cases which follow it nevertheless, with respect, give useful guidance on how the expression “systematic and discriminatory conduct”, where found in s.91R(1)(c), should be understood.
In SZHJR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 203, Sackville J held the Tribunal was not in error when it used the expression “a course of systematic conduct” in the sense of distinguishing between random acts which were not directed to any particular racial or ethnic group, such as attempts to extract money from suitable victims, and selective harassment based upon the race or ethnicity of a particular person or group of persons. His Honour also held that the Tribunal was in error when it used the expression to import a requirement of organised or methodical conduct.
The first respondent referred to SZCUW v Minister for Immigration & Multicultural Affairs [2006] FCA 1631, where Edmonds J rejected a challenge to the reasoning of Driver FM at first instance who was quoted as having said:
What I think the presiding member meant, upon reading the relevant passage in the context of the reasons as a whole, is that the internecine strife within the MQM was sporadic and unpredictable and hence did not constitute persecution. Viewed in that light, the presiding member’s finding is not necessarily inconsistent with the clarification by McHugh J in Haji Ibrahim. The risk of harm may be so sporadic and unpredictable that it cannot be found to be so oppressive or recurrent that a person cannot be expected to tolerate it.
However, the factual circumstances in SZCUW involved feuding between political groups and are distinguishable from the facts of this case as is the reasoning which applies to it. In this case, what the Tribunal said in relation to this aspect of the claim was:
The Tribunal is also of the view that in the [incident] in February 1999 the applicant had found himself at the wrong place at the wrong time and the attack on him was an isolated incident. According to his evidence, he was riding home in rickshaw and passing through an area which happened to have hosted an Awami League meeting. It was unfortunately there and at that point of time that the rickshaw he and his wife were travelling on was stopped and he was harassed. The Tribunal is not satisfied that this incident amounts to systematic and discriminatory conduct and that the chance of the applicant suffering similar harm in the reasonably foreseeable future is real. (CB 196).
Although the event in question was fortuitous and, indeed, isolated, as the Minister has submitted, the conduct towards the applicant was not random or unsystematic in the sense of being non-selective. The fact that the applicant and his wife were in the wrong place at the wrong time, as the Tribunal described it, was a random chance but the treatment which was meted out to the applicant was not random. It was specifically directed towards him by his political opponents because he was their political opponent. To this extent, the Tribunal erred in finding that the conduct in question was not systematic and discriminatory.
However, its consequential conclusion was that it was not satisfied that the applicant had a real chance of suffering similar harm in the reasonably foreseeable future was not affected by error. Given the isolated, and apparently unique, quality of the incident, this was a finding open to the Tribunal on the material before it and is not affected by its misunderstanding of the term “systematic”.
The alleged conduct of February 1999 was accepted by the Tribunal as having occurred but the occurrence of an event of persecution in the past does not prove that persecution will also occur in the future. The persecution’s rarity in the past may be a guide to whether it is likely to be repeated in the future or whether it properly forms the basis of a well-founded fear.
In Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said at 575:
In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore 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.
In this case, the Tribunal concluded that the probability of the recurrence of similar harm was so low that there was no real chance of it. This is a finding of fact unaffected by jurisdictional error and not susceptible to review in these proceedings.
1996 house attack issue
As conceded by the applicant, the factual finding in relation to this issue was qualitatively different from that relating to the 1999 issue because it was, in part, based on independent country information indicating that the attack on the applicant’s house occurred at a time of civil disturbance. In the circumstances, whether or not the Tribunal misunderstood the proper meaning of “systematic”, it was open to it to conclude that the attack on the applicant’s house was not politically motivated but was simply a non-selective, random consequence of the unrest at the time. In fact, the Tribunal does not reach any specific conclusion on the point, merely stating that it was not satisfied that the incident involved systematic and discriminatory conduct against the applicant. Consequently, I am of the view that the finding was reasonably open to it even though it misinterpreted the meaning of the term “systematic”.
Moreover, and in any event, for the reasons expressed in relation to the first asserted ground of review, this ground too is not made out.
Relocation finding issue
The applicant submitted that the Tribunal had made no finding that the applicant would not be involved in politics in a different area were he to relocate and, thus, its finding that it was reasonable for him to relocate was erroneous.
The submissions were originally based on a mistaken belief that the applicant remained a member of the BNP and that Awami League supporters might pursue him with the consequence that the Tribunal’s misunderstanding of the meaning of “systematic” affected its decision in relation to relocation. However, the submission was subsequently amended to take account of the fact that the applicant was no longer a member of the BNP but had joined the BDB. In this regard, the applicant submitted that the Tribunal’s observation at CB 198 that the independent country information did not give an overall impression that at the grassroots level BDB supporters had been subjected to systematic harm or harassment by the government or BNP supporters reflected the same misunderstanding of “systematic” as affected other portions of its decision.
However, what the Tribunal actually concluded was:
While violence against political parties, much of it attributable to criminal elements, is an unfortunate aspect of a relatively new and still maturing political process, BDB is a legal party and operate [sic] openly. In the Tribunal’s view, if the applicant were to engage in political activity at the same level at the same level [sic] he has in Australia the Tribunal is not satisfied that there is a real chance that he would face harm as a result. (CB 198).
This finding is to the effect that the applicant did not have a well-founded fear of persecution for a Convention reason notwithstanding his likely BDB activities upon return to Bangladesh because it was not satisfied that there was a real chance he would suffer harm.
But the Tribunal did not actually consider the issue of relocation in the context of the applicant’s membership of the BDB. No doubt this was because its principal conclusion in relation to that membership and related activities was that it had not occurred otherwise than for the purpose of strengthening the applicant’s claim to be a refugee, with the consequence that it had to be disregarded by reason of s.91R(3). The BDB membership and participation in BDB activities in Australia, being disregarded, were logically irrelevant to the relocation issue.
Even if the Tribunal’s misunderstanding of the true meaning of “systematic” affected its conclusion quoted at paragraph 26 above, that conclusion had no significance for the Tribunal’s decision in relation to the applicant’s BDB membership because of the operation of s.91R(3). The discussion in question does not form part of the basis of the Tribunal’s decision.
As to the reasonableness of relocation in the context of the applicant’s claim to fear persecution by Awami League members, the Tribunal’s conclusion was that because the applicant’s political activities were highly localised and he feared “his old locally-based political opponents” the Tribunal did not accept that he would be found by them in a country as densely-populated as Bangladesh. These are findings of fact unaffected by any misunderstanding by the Tribunal of “systematic”. As such, they are not susceptible to review by the Court in these proceedings.
Conclusion
For the above reasons, jurisdictional error on the part of the Tribunal has not been made out.
Consequently, the application will be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 1 June 2007
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