SZNEH v Minister for Immigration
[2009] FMCA 885
•11 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNEH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 885 |
| MIGRATION – Review of Refugee Review Tribunal decision – whether failure to deal with integer of applicants’ claim – consideration of Tribunal’s “separation” of applicants’ claims – whether Tribunal should have dealt with the “duality” of the social group – Tribunal considered all claims – Tribunal properly characterised social group – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.476 |
| Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 Rajaratnam v Minister for Immigration & Multicultural Affairs [2000] FCA 1111; (2000) 62 ALD 73 Perampalam v Minister for Immigration & Multicultural Affairs [1999] FCA 165; (1999) 84 FCR 274 Ram v the Minister of Immigration and Ethnic Affairs and the Refugee Review Tribunal [1995] FCA 1333; (1995) 57 FCR 565 S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; 206 ALR 242 |
| First Applicant: | SZNEH |
| Second Applicant: | SZNEI |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 145 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 7 July 2009 |
| Date of Last Submission: | 7 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 11 September 2009 |
REPRESENTATION
| Counsel for the Applicants: | Mr J Johnson |
| Solicitors for the Applicants: | Nil |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 21 January 2009, and amended on 17 April 2009, is dismissed.
The applicants pay the first respondent’s costs set in the amount of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 145 of 2009
| SZNEH |
First Applicant
SZNEI
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 21 January 2009, and amended on 17 April 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), which affirmed the decision of a delegate of the first respondent to refuse protection visas to the applicants.
Background
The applicants, who are husband and wife, are both Bangladeshi citizens. They arrived in Australia on 23 May 2008 and applied for protection visas on 20 June 2008 (Court Book – “CB”, CB 1 to CB 41). Only the applicant husband made claims to be a refugee. His claims were contained in a statutory declaration attached to his application (CB 37 to CB 41).
The applicant wife applied for a protection visa on the basis of being a member of his family (CB 31). However, it appears that during the conduct of the review the applicant wife made claims that she also feared the persecutory harm. These claims mirrored those of her husband’s to some extent and arose from the circumstances relevant to him.
The delegate refused the application on 11 September 2008 (CB 50 to CB 64). The applicants applied for review by the Tribunal on 24 September 2008 (CB 65 to CB 68). The applicants appeared at a hearing before the Tribunal on 19 November 2008 and gave evidence (CB 74). After the hearing the Tribunal wrote to the applicants by letter dated 25 November 2008, seeking comments in relation to information that the Tribunal said would be the reason, or part of the reason, for affirming the decision under review (CB 92 to CB 96). (The applicants’ response is reproduced at CB 98 to CB 101. The Tribunal’s decision record is reproduced at CB 106 to CB 129.)
Application to the Court
The amended application before the Court is in the following terms:
“Errors relating to the consideration by the Tribunal of the Applicants’ claim in relation to extortion
1. The Tribunal failed [to] deal with an integer of the Applicants’ claim, that they would be subject to extortion for a Convention reason if they were to return to Bangladesh, constituting a jurisdictional error.
Particulars
A. The Applicants claimed, and or the evidence clearly raised, that they feared that:
(1) they would be the subject of extortion if they returned to Bangladesh (see GB page 111, Statement of Reasons at [24]).
(2) extortion would be by opposition people or terrorists motivated by political beliefs, who targeted areas and people because of their political affiliations (GB page 113, Statement of Reasons at [37]); GB page 119, Statement of Reasons at [82]).
(3) The criminal activities targeted or to be targeted at the Applicants were based on political reasons (GB page 114, Statement of Reasons at [88]).
(see NABE v Minister for Immigration and Multicultural Affairs (No. 2) (2004) 144 FCR 1 at [63], and the several decisions of the Federal Court and dozens of decisions of the Federal Magistrates Court which have applied it).
B. The Tribunal only considered and dealt with a different claim, that the Applicants would be targeted because they are returning from abroad and would be presumed to have money (GB page 128, Statement of Reasons at [106]).
C. The Tribunal failed to consider the duality in the Applicants’ claim to fear extortion, being not just because they might appear to have wealth, but because they belong to a vulnerable social group, being Bangladeshis who have been active in the BNP, or alternatively Bangladeshis who have been active in the BNP and appear wealthy, and that the reason why the extorting party was interested in them had its foundation in a convention reason (See Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73 the 73 at [10] per Moore J although in dissent, and per Finn and Dowsett JJ at [46]-[48].
D. The Tribunal failed to properly define the particular social group and its characteristics or attributes, actual or imputed, raised by the Applicants and or by the evidence (see S395/2002 v Minister for Immigration and Multicultural Affairs 216 CLR 473 at [31]). It thus prevented itself from inquiring and obtaining evidence concerning that issue that might have determined the application in the Applicants’ favour (see Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [13], [42]-[50] and [77].
E. The Tribunal then failed to consider at all the availability of State protection for the Applicants.
F. The Tribunal’s findings at [107] that “In any case, there is only a remote chance of this occurring …’ refers back to the deficient foundation at [106] that the fear was one of being targeted ‘… because they are returning from abroad and will be presumed to have money.’ This finding too is accordingly infected with the error discussed above.”
Hearing Before the Court
At the hearing before the Court the applicants were represented by Mr J Johnson of counsel. The first respondent was represented by Mr T Reilly of counsel. Both parties have filed written submissions in this matter.
The applicants’ submissions, both oral and written, explain that there are two complaints alleging error on the part of the Tribunal.
The first alleged error is that the Tribunal failed to deal with an integer of the applicants’ claims relating to their fear of persecution by reason of extortion. This itself is said to have two aspects.
The first is that the fear of persecution was said to be by reason of political opinion, and the perception of the applicant, on return to Bangladesh, as having apparent wealth because of his having worked overseas.
The second was that the applicant was a member of a particular social group, fearing harm from both political opponents and terrorist groups. These groups would be motivated to persecute the applicant by way of extorting money because he was a political activist and would be perceived to be wealthy. The social group proposed, therefore, is: “political activists with apparent wealth.”
While the applicants made other claims, relevantly, their complaints now centre only on the claims related to the matters outlined above.
The applicants submit that there is error apparent in the way that the Tribunal dealt with these claims. The applicants’ submission is that the Tribunal dealt with these claims by considering persecution by political opponents in the context of physical harm, and threats, but not as these threats related to the issue of extortion. The applicants submit that the Tribunal did not understand or recognise the “duality” of the reasons for extortion as it related to them. That is, they submitted that the Tribunal failed to consider the risk of persecution from political opponents by way of extortion for the combined reasons of political views and apparent wealth. That while the Tribunal considered the applicants’ fear of physical harm from political opponents by reason of their political views, it failed to consider this additional integer of their claims.
The second claim mirrors the first, but places it in the ambit of a particular social group, said to arise from the circumstances presented by the applicants to the Tribunal – being that they belong to the group of apparently wealthy people who were politically active. This second claim relies on the assertion that the applicant husband’s (his view probably being attributed to the wife as well) political views may not be sufficient cause for them to be targeted for extortion, but that the combination, or duality, of their political beliefs and apparent wealth rendered them both members of a particular social group which would make them the target of political opponents, and extremists, or terrorist groups. When seen in that light, they submitted, this claim was not dealt with by the Tribunal, and it should have been.
In all, therefore, the errors that are said to have been made by the Tribunal arise from what is described as a dividing line or an “artificial separation” between the different elements of the claims made by the applicants, and that the Tribunal’s error is that it dealt separately and sequentially with the claims that the applicants feared extortion by reason of their political views, and by reason of their apparent wealth, when these should have been considered together.
It is that separation that the applicants submit lay at the heart of the errors made by the Tribunal.
Claims to Protection
The applicants’ claims to fear persecution in Bangladesh evolved, or developed in presentation, over the time following the making of the application for protection visas. Further details and enhancements to their claims developed over the course of the review by the Tribunal.
In the application for a protection visa, it was only the applicant husband who claimed to be a refugee in his own right. The applicant wife applied as a member of his family unit, and did not put any claims to be a refugee. The statutory declaration setting out the fear of persecution attached to the protection visa application forms was made only by the applicant husband.
Before the delegate, a process which also included an interview with the applicants (CB 56), only the applicant husband pressed claims to be a refugee. The delegate’s decision ultimately was that he could not be satisfied that the applicant husband was a person who, in effect, met the definition of “refugee” as set out in the UN Refugees Convention, and refused the protection visa application on that basis. The applicant wife’s application was also refused, on the basis that as a member of his family unit, she was not eligible for a protection visa, as a protection visa had been refused to her husband (CB 64).
Again, in the short statement accompanying the application for review to by the Tribunal, the complaint made about the delegate’s decision was made only by the applicant husband, and referred only to the delegate’s failure to be satisfied as to his “real fear of persecution”.
Before the Tribunal
At the hearing before the Tribunal, however, it appears from the report of the evidence given by the applicant wife that she appeared to make claims to be a refugee in her own right. (See [72] at CB 118.)
In its decision record, the Tribunal described the delegate’s decision (at [3] of the Tribunal's decision record) as:
“The delegate refused the visa application on the basis that the applicants are not persons to whom Australia has protection obligations under the Refugees Convention.”
It may be that the Tribunal overlooked that there are two separate criteria for protection visas as derived from s.36(2) of the Act. The first is that which relates to a non-citizen in Australia in respect of whom the relevant decision maker is satisfied that Australia has protection obligations under the Refugees Convention (s.36(2)(a)). The second criterion relates to a non-citizen in Australia, who is a member of the same family unit as a person who satisfies the first criterion and subsequently holds a protection visa (s.36(2)(b)).
In any event, no complaint is made now in this regard by the applicants. The Tribunal proceeded to deal with the applicant husband’s refugee claims, and with the applicant wife’s refugee claims, as they emerged during the course of the hearing, and as further explained in the applicant husband’s response of 17 December 2008 (CB 98 the CB 102) to the Tribunal’s invitation of 25 November 2008 to comment on, or respond to, information that the Tribunal said would be the reason, or part of the reason, for affirming the decision under review (CB 92 to CB 96).
Complaints before the Court
I should just note that following the hearing in this matter the applicants sought to reopen their case to enable argument and consideration of an additional ground said to arise from what was said, and found, in SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693. This was set down for hearing on 9 September 2009.
Following the Full Federal Court Judgment in Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109, orders were made, by consent, dismissing this application.
The resolution of the applicants’ complaints before the Court now require an understanding of the development of the applicants’ claims during the course of the processing of the protection visa applications, and during the course of the conduct of the review before the Tribunal. The following focuses only on those claims made that are relevant to the complaints now before the Court.
In his statutory declaration attached to his protection visa application (CB 37 to CB 41), the applicant husband claimed to fear persecutory harm in Bangladesh because of his involvement in the activities of the Bangladesh Nationalist Party (“BNP”), the political opponents of the Awami League (“AL”). The applicant claimed to have gone overseas to work in 1994, and was able to subsequently make “huge” donations of money to the BNP. He claimed that, on occasion, he returned to Bangladesh, and that he had been actively involved in party political matters, including demonstrations. He claimed to fear harm from a “caretaker government” that had been installed in January 2007, and appeared to have been still in power at the time of the making of the declaration.
At an interview with the delegate, the applicants also raised the fear that they would be the subject of extortion if they were to return to Bangladesh (“Fear that terrorists will ask for money. It will be thought he has money” – CB 56.5). The applicants also submitted a letter to the delegate “from the Bangladesh national party confirming that the applicant is known politically and his ‘affiliated with the BNP was quite long’. The letter further advises that he was one of the donors to the party and was a leading activist …” (CB 56.7).
In its decision record, the Tribunal understood the applicants’ claims to fear harm before the delegate to include relevantly:
“24. Both applicants were interviewed by the delegate and provided information about their circumstances. They expressed a fear of harm to the first named applicant from members of the opposition Awami League in Bangladesh and also from the current caretaker Government in the country. They feared that the first named applicant would be subject to imprisonment and possibly torture should they return to Bangladesh at the current time. They also raised the possibility that, having lived abroad, the couple will be seen to have money and they could be asked for this by terrorist groups should they return…” (at CB 111).
In the applicants’ submissions to the Court, two parts of the Tribunal’s report of what occurred at the hearing before it, in particular, are of note in this regard. See paragraph 37 (at CB 113):
“37. The fact that the first named applicant had lived successfully in another country and was able to establish life there was discussed. The first named applicant explained that he bought a plot in Dhaka in 1998 and another plot in 2005. He had wanted to do something but could not because people would come asking for bribe money. This was opposition people or terrorist people sometimes asking for money. They would say that if he wished to do something he would have to pay some money … The terrorist group could ask people to bring guns or for money. They had not asked the applicant but he had heard of this. People may think that he had a lot of money.”
See paragraph 82 (at CB 119):
“82. The issue of whether this fell within the definition of a refugee was discussed. The first named applicant explained that the definition clearly said that it helped people who feared for their life. The first named applicant explained that in the last two years this had happened in his area and the RAB were still trying to catch them. The second named applicant believes that these groups were motivated by political beliefs. The first named believed that this was a social group. The second named applicant believed that many times terrorist parties had many political affiliations and targeted some provinces and sometimes had political affiliations, for example being from the Awami League, or did not like other groups.”
Mr Johnson’s submission was that at the hearing this additional dimension, or aspect, of the applicants’ claims could be seen to emerge in their circumstances. That is, the extortion that the applicants feared would be extortion by opposition people, or terrorists, who were motivated by political beliefs, and who in turn targeted people because of their political affiliations. This was said to be even further evident in the applicant wife’s evidence, where an explicit link was made between terrorist parties and their political affiliations, and that terrorist parties target some “provinces”, or groups of people, because of these affiliations.
Following the hearing, the Tribunal wrote to the applicants by letter dated 25 November 2008 (CB 92 to CB 96), inviting comment on information that the Tribunal said it considered would be the reason, or part of the reason, for affirming the decision under review.
Mr Johnson referred the Court to the following (at CB 95):
“5. Interest in criminal, terrorists or political groups in extorting money from you
It has been claimed in your evidence to the Tribunal that you fear being extorted for money because you will be returning to Bangladesh from a foreign country and will be presumed to have money. [The applicant husband] has claimed that he was asked for money in 2005 by terrorists, but did not pay money.
The Tribunal may take the view that a claim of this nature does not give rise to protection obligations in Australia. It may take the view that any harm feared on this basis would not be for reasons of any Convention characteristic. While in some circumstances, the wealthy may constitute a particular social group, it does not appear in the circumstances being considered here that there is any unifying element to those who would be extorted. It would appear that the group would be defined by the threat of extortion and there would be no element or characteristic which unified or identified them beyond this. The Tribunal, therefore, may take the view that any harm in this regard would not be for reasons of membership of a particular social group.”
In particular, Mr Johnson referred the Court to two aspects. The first is that the Tribunal’s letter itself links the extortion of money, not only to terrorists, but also to political groups. Second, that there is some recognition that the applicants may have raised some claim requiring consideration of the constitution of a particular social group (even though the letter suggests that the Tribunal may not find that such a group existed). But that, nonetheless, there is recognition, in the applicants’ submission, on the evidence put forward by the applicants, and the claims made by the applicants, that the Tribunal should have dealt with whether there was a particular social group, relevantly, in existence.
The applicant husband responded by letter dated 17 December 2008 (CB 98 to CB 100). (See also annexures at CB 101 to CB 102.)
In particular, Mr Johnson referred the Court to the applicant husband’s response (CB 99 to CB 100):
“6. Interest in criminal, terrorist or political groups in extorting money from you
The criminal activities and terrorist activities towards me were fully based on political reasons not for any other reasons. During my hearing I also told to the tribunal member that in our district there have one political group who come to night time for extorting money. The name of this particular political group is Purba Banglar Communist Party (PBCP). This party is banded by Bangladesh government but still they are active in our village area. With this letter I enclose a news which was published on …”
[Errors in the original.]
[At CB 101, the applicant encloses the relevant news item which relates to extremists being killed by police in a gun battle in an area close to the applicants’ home village.]
The response continued:
“… Final submission:
Finally I want to tell that truly I have no any way to go back Bangladesh. I have such a fear to my opposition party - Bangladesh Awami League and Purba Banglar Communist Party …”
[Errors in the original.]
The applicants’ submission arising from this is that the claim that criminal activities associated with extortion (of which they would become a target, or would fear they would become a target) were based on political reasons, and that this was made explicit. That, further, they gave the Tribunal an example of one such group, which was in fact an extremist group.
In all, therefore, the applicants’ submission now is that when regard is had to the manner in which the applicants’ claims were presented, ultimately, before the Tribunal, the Tribunal ought to have considered, amongst the other claims, the following:
1)That the applicants would be targeted by political opponents because of the combined effects of their political activities and their apparent wealth.
2)That they belonged to a particular social group, being BNP activists with apparent wealth.
The applicants especially relied on the following authorities:
1)Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [18], [22], [26] to [27] (“Dranichnikov”), for the proposition that in the applicants’ circumstances there was error by the Tribunal in defining the relevant social group, and for the proposition that the Tribunal had failed to decide the “first question” in failing to determine whether the group to which the applicants’ circumstances gave rise is capable of constituting a social group for the purposes of the Convention. Further (with reference to Dranichnikov at [67] to [68]), the Tribunal did not specify with precision the social group to which the applicants’ circumstances gave rise. That is, the Tribunal failed to consider the “narrower” particular social group of BNP activists of apparent wealth.
2)Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [36] and [50].
3)NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (“NABE No 2”) in particular at [26], [56] to [60], [63], [67], and [68].
4)In particular, the submission was that with reference to Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42], the Tribunal is required to consider all claims, and component integers of each claim, made by an applicant.
5)Further, in NABE No 2 at [58], after reviewing relevant authorities:
“… The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.”
And further at [60]:
“…This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.”
6)Rajaratnam v Minister for Immigration & Multicultural Affairs [2000] FCA 1111 at [46] and in particular at [48]:
“In a particular setting, then, extortion can be a multi-faceted phenomenon exhibiting elements both of personal interest and of Convention-related persecutory conduct. For this reason 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 extorsive 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 inquiry concerning causation arising in an extortion case must allow for the possibility that the extorsive activity has this dual character.”
In all, therefore, with reference to the relevant authorities, the applicants’ position is that:
1)The Tribunal failed to consider a claim of persecution by extortion by political opponents. That while this was raised at the hearing before the Tribunal, it was explicitly made in the written response to the Tribunal’s letter, which the applicants gave to the Tribunal following the hearing.
2)That in relation to this characterisation of the applicants’ claim, and in relation to the relevant social group, the Tribunal failed to consider the duality in the applicants’ claim to fear extortion because of the perception of apparent wealth, and because they belong to a vulnerable social group, being Bangladeshis, who have been active in the BNP, and who appear to be wealthy, and that they were targeted by extortionists, who were also motivated by political reasons for targeting the persons in that social group of which the applicants were members.
In relation to the Tribunal’s findings, Mr Johnson particularly referred the Court to the Tribunal’s decision record at paragraphs 106 and 107 (CB 128):
“106. The applicants have also both expressed fears about the conduct of terrorist or extremist groups in Bangladesh and that they may be targeted because they are returning from abroad and will be presumed to have money. In the Tribunal’s view, this does not form a basis for considering the applicants are owed protection obligations under the Refugees Convention. While in some circumstances the wealthy, those returning from abroad or persons with money may be considered a particular social group, the Tribunal does not believe that this is the case here. There is not a sufficiently unifying element among members of the group, other than the fear of extortion, which could give rise to a particular social group. Furthermore, the groups which may extort money may be operating from a political motive, but the Tribunal does not accept that they would be targeting those from whom they extort on the basis of political opinion.
107. In any case, it is the view of the Tribunal that there is only a remote chance of this occurring. While the applicant claims to have been approached in this regard in 2005, he was able not to pay money demanded and purchased other land in Dhaka. He did not apparently experience any harm. Likewise, while he has provided evidence from the Daily Ittefaq from August 2006, which confirms that political groups have undertaken robbery in the past in Pabna, this does not support a conclusion there is a real risk of such harm to the first named applicant or his family. This was the only reported incident of such harm to which the applicant referred in his local area. He and his wife have spent considerable time in Bangladesh without experiencing any harm in this regard in the past and the Tribunal does not believe that there is a real chance they would experience such harm on return at this time or in the foreseeable future.”
Mr Johnson’s submissions, relevantly, were that the opening sentence of paragraph 106 reveals (bearing in mind the way in which the “decision is structured”) that the Tribunal closed its mind to persecution, both by political opponents and the government. That what follows at paragraphs 106 and 107 is in relation to the conduct of terrorist or extremist groups in Bangladesh. That is, that the Tribunal saw that the sole reason for targeting the applicants as being because they were returning from abroad, and would therefore have been presumed to have had money. This does not include the element of extortion by political opponents, and did not recognise that an element of extortion may be because of the applicants’ political beliefs and activities.
Further, that the Tribunal’s reference at paragraph 106 to “particular social group” is made, in context, with a failure to take what was said to be the fundamental first step of characterising a particular social group properly. That is, what is subsequently seen in paragraph 106 must be seen in the context of the opening sentence, which refers to the conduct of terrorist or extremist groups only.
As I understood it, the submission was that, when seen in this way, the Tribunal’s reference to: “… may be operating from a political motive”, addressed the situation where extremists or terrorist groups might have a political reason for extorting money, but failed to deal with what was said to be the applicants’ claim (amongst others) that such groups would turn to the wealthy, or indeed, any particular member of that class of the wealthy, because of their political views. The distinction being drawn between the political reasons of the terrorist groups, and the targeting of persons in the particular social group, who have the characteristic, not only of being wealthy, but also having been targeted because of their political beliefs.
Even further, Mr Johnson submitted that the Tribunal’s reference in the opening words at paragraph 107 to: “In any case” refers back to the opening words of paragraph 106. That is, a reference to terrorists or extremists targeting the wealthy for extortion, and that there was only a remote chance of that occurring. That the reference in paragraph 107 to “political groups” is a reference to the banned extremist group, referred to in the documents submitted by the applicants (at CB 101), and which had been put forward as an example of a group from which they feared harm.
In short, therefore, I understood Mr Johnson’s submission to be that, in his view of the Tribunal’s relevant reasoning, when read properly, the relevant parts of the Tribunal’s analysis reveal that the Tribunal failed to address the applicants’ claim that they feared harm (in the context of extortion) from political opponents and because of their (the applicant wife’s views, probably imputed) political views, and that it failed to consider that the applicants were members of a particular social group, being political activists of apparent wealth (because they had returned from overseas), who were also targeted because of their political views.
Mr Reilly’s submission in response was that any claim to fear extortion was rejected as not being well-founded (with reference to [107]), and that any issues of Convention motivation were therefore irrelevant. Further, and in any event, the Tribunal did consider the claim that was raised by the applicants, in terms of whether or not a relevant social group existed (with reference to what is set out at [106]).
Consideration
The issue of extortion appears to have been raised for the first time at the interview with the delegate. There is no direct record before the Court of what was actually said at the interview with the delegate. But the Tribunal’s decision record makes reference (at [24]) to the applicants having raised the possibility that, having lived abroad, they would be seen to have money, and could be asked for this by “terrorist groups” if they were to return.
This is consistent with what the delegate reported from the interview that they feared that terrorists would ask for money because it would be thought that the applicant had money (in context, presumably because he had returned from overseas – CB 56), although this latter is not clear from the delegate’s decision record.
I agree with Mr Reilly that, at least at that stage (by the time of the delegate’s decision), the applicants’ claims, in relation to extortion were, at best, that they would be perceived to have money, given that they had lived abroad, and that they could be asked for money by terrorist groups. (I did not understand Mr Johnson to contend to the contrary.)
I cannot see that this is an explicit claim of membership of a particular social group to be dealt with by the Tribunal. Nor do the circumstances give rise to such a claim.
It is clear on the relevant authorities (NABE No 2, and the authorities cited therein – see especially [58] and [60]), that the Tribunal must deal with a claim, or an aspect of the claim, expressly made by an applicant. But the Tribunal is not to limit its analysis simply to what is expressly articulated by an applicant. A claim that is not expressly made will still attract the Tribunal’s review obligation when it is apparent, and arises on the face of the material before the Tribunal. Noting, of course, that the Tribunal is not required to: “depend for its exposure on constructive or creative activity.”
Nor do I understand the “duality” to which the applicants now refer to have arisen at the hearing before the Tribunal. Again, there is no transcript before the Court of what occurred at the hearing. Relying on the only account available (that is, the Tribunal’s account), what is reported at paragraphs 37 to 39 is relevant (CB 133).
At the hearing the applicant husband’s evidence was that he had lived successfully in another country. That he had bought land in Dhaka in 1998 and in 2005. Further ([37] at CB 113):
“… He had wanted to do something but could not because people would come asking for bribe money. This was opposition people or terrorist people sometimes asking for money. They would say that if he wished to do something he would have to pay some money. The terrorist group could ask people to bring guns or for money. They had not asked the applicant but he had heard of this. People may think that he had a lot of money.”
He claimed that he had actually been asked for money “by some terrorists” in 2005 (at [38]). When asked, he indicated that the terrorists, who had asked him for money in 2005, as being: “ … they were political people.” Although he then went on to say that he did not know who they were because they were not from his area ([39] at CB 113).
Again, I cannot see that the “duality” that the applicant claims that arose out of his circumstances, or the particular social group, can be said to have arisen from what is presented up until that point. Nor did I understand Mr Johnson to so contend.
Relevantly, at this point, the applicant’s fear was that he had been unable to develop land that he had bought because he was asked for “bribe money” by “opposition” or “terrorist” people.
The issue of extortion was also discussed at the hearing, as reported at paragraphs 81 to 83 of the Tribunal’s decision record. What this reveals is that the applicant husband explained that the concerns about being asked for money were that “they” would think that he had money because he had been abroad, and that in his local area there were “problems with terrorists”.
It was at this point that the applicant wife introduced the idea that “these groups” were motivated by political beliefs. That: “many times terrorist parties had many political affiliations and targeted some provinces and sometimes had political affiliations …”
Again, the “duality” to which the applicants refer, and the circumstances giving rise to the Tribunal’s addressing of a “particular social group”, do not appear to have arisen at this stage. Nor was it contended by Mr Johnson that it had been explicitly raised at that time.
What was submitted, however, was that what was said, particularly by the applicant wife, clearly gave rise to what the Tribunal then put in its subsequent letter to the applicants inviting comment. That is, the matter at item 5 of its letter (at [33] of this Judgment).
The resolution to this issue, in my view, is to be found in what the Tribunal actually put in its letter, and what the applicants replied in response.
In my view, the terms of the Tribunal’s letter are clear as to the extent of the claims made expressly by the applicants, including the applicant wife. This was directly encompassed in the Tribunal’s relevant question at item 5 of its letter (CB 95). This, in my view, accurately reflected, and addressed, what was said at the hearing.
First, the Tribunal understood that the range of persons from whom the applicants claimed to fear extortionary harm, was: “criminal, terrorists or political groups.” In my view, the Tribunal properly understood that the applicants’ consistent claim up until that point had been that the applicant husband feared being extorted for money because he was returning to Bangladesh, from a foreign country, and would be presumed to have money. The Tribunal put to the applicants that such a claim did not appear to have a Convention characteristic. That while in some circumstances the “wealthy” may constitute a particular social group, the circumstances presented by the applicants may lead the Tribunal to take the view that any harm would not be for reasons of membership of a particular social group.
The applicant wife’s reference at the hearing that “these groups seeking to extort money” were sometimes motivated by political beliefs, and had political affiliations, appears to be picked up in the relevant subheading in the Tribunal’s letter (CB 95.2 at [33] above). But it does not appear to be squarely addressed in the text that follows.
In any event, the applicants’ response seeks to make this connection. The response appears to have been written from the perspective of the applicant husband. Importantly, the applicant husband responded: “The criminal activities and terrorist activities towards me were fully based on political reasons not for any other reasons”. (See item 6 at CB 124, and also [36] above.) The applicant then continues with:
“… During my hearing I also told to the tribunal member that in our district there have one political group who come to night time for extorting money. The name of this particular political group …”
I agree with submissions by Mr Reilly that the claim made by the applicants now before the Court was not expressly raised by them. In fact, the applicants’ response to the Tribunal’s letter could give rise to some confusion.
What was raised, by the applicant wife at the hearing and the applicant husband in the response to the Tribunal’s letter, on any plain reading of the material before the Court, appears to have been put in response to the Tribunal’s expressed doubts that up to that time the claims (relevantly) as presented did not have a Convention nexus. Therefore: “The … activities towards me were fully based on political reasons not for any other reasons.” In context, presumably, those reasons which did not have a Convention nexus.
Putting to one side that, in context, it could be argued that this claim appeared, at best, opportunistic, what remains is that in the totality of what the applicants claimed to the Tribunal is that having maintained, up until, and including, the hearing, the claim that they would be targeted because they were perceived to be wealthy on return from overseas, the applicant husband’s response to the Tribunal’s letter plainly states that the applicant husband was: “fully targeted for political reasons”, and “not for any other reasons.”
The matter appears to be further confused by the applicant husband’s response, which appears to equate criminal and terrorist activities with the “political reasons”. In context, it blurs the distinction between criminal, terrorist, or political groups, such that it would appear that what was left of the claims was that political groups that conduct criminal and terrorist activities targeted the applicant husband by extorting money from him for political reasons.
At best, it is unclear whether this was meant to be a rejection of the claim that they would be targeted because they would be perceived to be wealthy, because they returned from overseas, as opposed to being targeted when they did return to Bangladesh for political reasons only. That is, by political groups (and one in particular, which was named by the applicant husband), which are active in his area, and which come to his district to extort money. The issue, therefore, before the Court now is to identify exactly what the applicants ultimately expressly claimed and to further identify any claim or claims apparent on the face of the material before the Tribunal, such that the Tribunal was obliged to deal with it.
The applicants’ grounds before the Court now stem from the fear of harm by way of extortion that they said would occur to them if they were to return to Bangladesh. In the first instance, that they would be targeted by political opponents because of the combined effects of their political activities and their apparent wealth, and secondly that they would be targeted for extortion because they belonged to a particular social group of political activists of apparent wealth.
On its own, being the target of extortionary conduct, because of apparent or perceived wealth, may constitute no more than conduct of a criminal nature. Relevant authorities, however, clearly recognise that there are circumstances where extortion can amount to persecution for a Convention reason. (See, for example, Perampalam v Minister for Immigration & Multicultural Affairs [1999] FCA 165; (1999) 84 FCR 274 per Burchett and Lee JJ.) In some circumstances, the possession of wealth, or the perception of the possession of wealth may lead to those who are perceived to be wealthy to be considered to be members of a particular social group. (See, for example, Ram v the Minister of Immigration and Ethnic Affairs and the Refugee Review Tribunal [1995] FCA 1333; (1995) 57 FCR 565 per RD Nicholson J, and compare with Burchett J at 569)
Relevantly, the applicants referred the Court to Rajaratnam v Minister for Immigration and Multicultural Affairs (2000) 62 ALD 73. I note, in particular, for the purposes of the current case what was said at [48] per Dorsett and Finn JJ:
“In a particular setting, then, extortion can be a multi-faceted phenomenon exhibiting elements both of personal interest and of Convention-related persecutory conduct. For this reason 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 extorsive 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 inquiry concerning causation arising in an extortion case must allow for the possibility that the extorsive activity has this dual character.”
It must be said that the manner in which the applicants developed their claims before the Tribunal could lead to some sympathy for the Tribunal in determining exactly what claims the applicants made, and more particularly, what claims survived ultimately before it.
The response to the Tribunal’s letter, being the last iteration of the applicants’ claims put before the Tribunal (particularly if each item is read in isolation) could lead to the view that the applicants had abandoned the earlier claims to fear harm from criminal and terrorist groups per se, and indeed to be members of a particular social group, however that particular social group may be described, and to have claimed simply that the relevant fear was to fear harm, described as “criminal activities” and “terrorist activities” from political groups for political reasons. This would appear to be the best reading of what is said at item six of the applicants’ response. (See CB 99.)
Such sympathy, however, is curtailed by the recognition that the applicants currently before the Court (like many other refugee applicants) were not legally represented before the Tribunal, nor indeed do they appear have been represented by any migration agent, such as to expect that the presentation of claims would have been “packaged” in such a way as to clearly articulate the claims, and each integer of the claim, and indeed whether what was said last represented an abandonment of what was said earlier, or merely an explanation, or enhancement.
While it is certainly possible, as Mr Reilly suggested during the course of submissions before the Court, that what the applicant wife told the Tribunal at the hearing after the applicant husband had given his evidence, and what was contained in the response to the Tribunal’s letter, may appear to be an attempt to provide a Convention basis for what the applicants would have understood at the hearing before the Tribunal to be a deficiency in their claims as put up to that point in terms of the need for a Convention nexus.
This is particularly so when regard is had to what the Tribunal reports at paragraph 82 of its decision record: “The issue of whether this fell within the definition of a refugee was discussed.” It was following the raising of that issue that the applicant wife suggested that: “… many times terrorist parties had many political affiliations and targeted some provinces and sometimes had political affiliations ...”
Perhaps an element, or integer, of the claim raised for the first time.
In my view, when read in context, and when read properly in light of the evidence given at the hearing, I am prepared to accept that the applicants’ response at item 6 (CB 99) does not amount to a renunciation of what they had said in the past about the claim to fear extortion, and from whom they claimed to fear it. But in my view, is to be properly seen as a rejection by the applicants, in particular, the applicant wife, of the proposition that the extortionary harm that they feared did not have a Convention nexus.
What then was the Tribunal obliged to deal with?
First, I do not agree with the applicants’ submissions now that their circumstances put before the Tribunal were such that they would be the subject of extortionary demands because of their political views, or that they belonged to a particular social group, being apparently wealthy people, who were active politically and would be targeted for both reasons of perceived apparent wealth and political views which they held.
This is to be distinguished from an aspect of their claims that developed towards the end of the process of review that the terrorist and criminal groups may themselves have had political affiliations, and may indeed have included other political groups.
That they would be the subject of extortion because of their political views was clearly not something that could be said to have arisen in anything that was put up to the hearing. Up until that time, the fear of harm based on the applicants’ political views was said to be from members of the opposition Awami League, and from the then caretaker government in Bangladesh.
The issue of extortion was said to be relevant because they would be seen to have been living abroad, would be seen to have money, and could be asked for this by “terrorist groups”.
The political affiliation of these extortionists could be said to have first arisen as a result of the evidence of the applicant husband at the hearing before the Tribunal (at [37]), where the applicant husband said that, in relation to land that he had bought in Dhaka, sometimes people would come asking for “bribe money”. He described these people as “opposition people or terrorist people”. But there is nothing to suggest, even by way of inference, that the applicant husband’s claim was that he was targeted by them for his political views. He was targeted, as he said, because “people may think that he had a lot of money.”
I agree with Mr Reilly that the applicant husband’s evidence, in particular, continued to be vague, and further appeared to be confused on this issue. For example at [39], when the Tribunal reports that when the applicant husband was asked “which terrorists asked him for money in 2005, he indicated that they were political people.” Some little way further into the discussion he then said: “He did not know who these people were …”
Any suggestion, as put now, arising from [39] that the reference to “these people” can be explained as being “people when he was studying” (that is, his political opponents at the time that he was politically active in student politics) must plainly be rejected. It certainly does not come within the ambit of an integer of the applicant’s claim being said to arise, clearly, from the circumstances, as put forward by the applicant, as saying that he was targeted by extortionists of whatever ilk because of his political views.
I do not agree with the argument that the applicant’s claims relating to a fear of harm from the Awami League and the caretaker government arising from his political activities, initially as a student, leads to a claim, clearly arising, that he subsequently feared to be the target of the extortionists because of these earlier expressed political views.
In my view, there is nothing in the applicant’s evidence to link the fear of harm from political opponents – the Awami League and the caretaker government because of the applicant husband’s political views, and the fear of harm from extortionists, who may be motivated in part to extort money for use in their own political ends from the applicants. I cannot see that such a link can be said to “clearly” arise in the circumstances presented.
There were no clear circumstances that the groups from whom extortion was feared (albeit they may have acted from their own political motives) were the groups from which harm was otherwise said to be feared because of the applicant husband’s political activities – the Awami League and the caretaker government.
Further, at paragraph 72 of the Tribunal’s decision record the applicant wife’s reference to her fear, amongst other things, that someone would “take money from them” again gives no rise to any suggestion that they would be targeted because of their political affiliations.
What the applicant husband is reported as having said at paragraph 81, again, does not go beyond a fear of extortion because he had been abroad and would be thought to be wealthy, and the fear of harm in this regard was said to be from “terrorists”. When the issue of whether this claim fell within the definition of “refugee” (see [82]) was raised, it does not appear that the applicant husband understood clearly the importance, or relevance, of what the Tribunal was saying. His reported response that he “believe that this was a social group”, with a reference to those from whom he feared harm, can only be seen as some misguided attempt to import the concept of social group (with its connotations of Convention nexus) into the discussion.
Further, the difficulty for the applicants now is that it is not whether the perpetrators of extortion could be said to form a social group, or a particular social group, but whether the applicants could be said to be members of a particular social group.
In contrast, even though the applicant wife introduced the issue of “political” to the discussion. But even at its highest, this can only be seen as a claim that those from whom extortion was feared had political affiliations, not that the applicants would be targeted for extortion by reason of their political views.
The response to the Tribunal’s letter, in my view, must clearly be read both in the context of what the applicants had previously put to the Tribunal, and with regard to the plain language of what is said. That the extortion feared by the applicants was from criminal terrorist groups, and from groups with political affiliations, and who acted for political reasons can be seen. But there is nothing to suggest that the applicants would be targeted by them because of their particular political views, or indeed their affiliation with any political party.
This is reinforced by the example given by the applicant husband in this response to the Tribunal’s letter. Following the first sentence at item 6 (CB 99) the applicant referred to his evidence, at the hearing before the Tribunal, to a particular political group who came at “night time for extorting money”. There is nothing to suggest that the applicants would be targeted because of their political views.
It is important, in this context, to note that while the applicant husband claimed to fear harm because of his political views, that harm was said to emanate from the caretaker government in Bangladesh, and from the opposition party (to his party), the Bangladeshi Awami League. The party named by the applicant, which was the subject of a newspaper report, which he provided to the Tribunal, was on the applicant’s own evidence “banned” by the Bangladeshi government. There is nothing to show that this group was linked to the Awami League, nor is it asserted by the applicants, nor is there anything in the material before the Court to support any such assertion.
In all, therefore, I do not agree with the applicants’ submission that they feared extortion, and feared that they would be the target of extortion because of, amongst other things, their political views.
Mr Johnson submitted that when the “totality” of their claims is looked at, what the applicants were seeking to put in their response to the Tribunal was that, because they feared harm from political opponents (such as the Awami League), when the applicants put in their response that “the criminal and terrorist activities” towards him were “based on political reasons not for any other reasons”, this meant that he was targeted because of his political views. This must, in light of the above, be rejected.
Clearly, the applicant did make claims to fear harm from political opponents because of his political views. This was, in fact, raised by the Tribunal in its letter to him. At item 4 the applicant husband responded that he confirmed his evidence to the Tribunal that he had a well-founded fear of persecution from his political opponents and, in particular, the opposition party, Bangladesh Awami League, and the caretaker government.
Bearing in mind relevant authorities, the claim does not have to be explicitly made. But it must be seen to clearly arise in the circumstances. There is nothing in the circumstances presented to the Court to show that it can be said that any link can be inferred in what the applicants said between their fear of harm because of the applicant husband’s political views, from the Awami League and the caretaker government, and their fear of harm from those who engaged in criminal or terrorist activities, even those who were said to act for their own political reasons in this regard.
When understood in this way, therefore, the Tribunal dealt with the applicants’ claims as they were said to arise in the “totality” of the circumstances presented.
The applicants claimed that they would be persecuted by way of extortion because they were perceived to be wealthy people, returning from abroad, and that such a perception, and fear of harm, would come from “criminals”, “terrorist” groups, or “political” groups, who nonetheless had political affiliations, and political reasons, for extorting money. But on the applicants’ own evidence, and consistent with the newspaper report that the applicants provided in support, such groups were indiscriminate in their targets. While they themselves may have acted from a political perspective in raising money to fund their politically related activities, there was nothing to suggest that they would target the applicants because of their political affiliations or views.
In this light, this is precisely what the Tribunal addressed at both paragraphs 106 and 107 of its reasoning. The Tribunal plainly considered whether persons who are wealthy, or those returning from abroad, or persons with money, may be considered to be a particular social group. The Tribunal rejected that such persons could be considered to be a particular social group for the purposes of the Convention. It found that the necessary unifying element amongst members of this group (that is, the shared characteristic or common attribute to all members of the group) was only the fear of extortion, and that that could not give rise to a particular social group. I understand this finding to be consistent with what was, relevantly, said in S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; 206 ALR 242 at [36] per Gleeson CJ, Gummow and Kirby JJ.
Within this, it is also clear that the Tribunal also considered that aspect of the claim made by the applicant wife at the hearing, and confirmed in the applicants’ submission in response to the Tribunal’s letter, as to whether those who may seek to extort money from the applicants may be operating from a political motive. It did not accept that the targeting would be on the basis of their political opinion.
I agree with Mr Reilly that, bearing in mind relevant authorities (and in particular, NABE No 2) in relation to “particular social group”, the Tribunal dealt with the group explicitly put forward by the applicants, including addressing elements which could be said to clearly arise from the circumstances presented by the applicants to the Tribunal.
I also agree with Mr Reilly that when properly read (at [107]) the Tribunal’s finding addresses the applicants’ claim to fear harm on the basis of extortion. In my view, when properly read, paragraph 107 contains a finding by the Tribunal that the prospect of the applicants being subjected to extortion, for whatever reason, and from whatever quarter, was so “remote” that the Tribunal could not be satisfied that there was a real chance that they would experience such harm on return to Bangladesh.
This was a finding that was open to the Tribunal on what was before it, and for which gave reasons. That is, that both the applicants had spent considerable time in Bangladesh without experiencing any such harm in this regard in the past. In relation to the claim that the applicant husband had been approached in 2005, that he was able to “not to pay money demanded”, and indeed, “purchased other land in Dhaka”.
Mr Johnson also submitted that the Tribunal, in making its finding of a “remote chance” in this regard (when [107] is read with [106]) the Tribunal was referring only to a remote chance that the fear of extortion would be from terrorist or extremist groups, and did not include political groups operating from a political motive and targeting the applicants on the basis of their political opinion (amongst other things).
In other words, the reference in the first sentence (at [107]) to “remote chance of “this” occurring, is a reference only to the conduct of terrorist or extremist groups in Bangladesh. In my view, when read fairly paragraph 107 does encompass the political dimension of the applicants’ claim put by the applicant wife, and in the submission in response to the Tribunal. The Tribunal specifically makes reference to the applicants’ evidence which: “… confirms that political groups have undertaken robbery in the past in Pabna ...”
The Tribunal was plainly aware of the political dimension added to their claims by the applicants in the manner already outlined above. When properly read, I do not see it that what the Tribunal said at paragraph 107 relates only to the conduct of terrorist or extremist groups, and excludes the political dimension. Bearing in mind how this was put by the applicants themselves, and even on what could properly be inferred from what they said.
I do not see either paragraphs 106 or 107 as being “contradictory” to what said in Dranichnikov. The Tribunal did specify with precision (with reference to Dranichnikov at [68]) the social group that “the applicant propounds”. That is, as persons who recently returned from overseas, they were perceived to be wealthy by a range of groups, including groups that may be operating from a political motive.
Further, the particular social group to which the Tribunal must consider (firstly, as to whether it exists in the circumstances presented by the applicants’ case, and secondly whether the applicants are members of such a group) must still be a group that is capable of being suggested by the circumstances put before the Tribunal.
This is not a situation, in my view, where the Tribunal sought to define the group too narrowly or too widely. In my view, the Tribunal dealt with the group as the circumstances before it suggested. That is, persons who are perceived to be wealthy, because they have returned from overseas, and who therefore become the target of groups seeking to extort money, including groups that may be operating from a political motive.
In short, I agree with Mr Reilly that the Tribunal addressed the dimensions of the claim as made.
Conclusion
The two limbs of the applicants’ complaint, therefore, are not made out. The Tribunal dealt with the claims made. It dealt with the claim that the applicant husband, in particular, feared harm from political opponents, and it dealt with the claim that the applicants feared to be the target of extortion from groups, including those with political affiliations. There is nothing in the applicants’ evidence, however, to suggest that such groups, who would seek to extort money, were either the opposition Awami League, or the caretaker government – the groups from which the applicant husband claim to fear harm because of his political views.
I do not agree with the applicants’ summary of the case put forward now that the Tribunal failed to consider the risk of persecution from political opponents by way of extortion because of the applicant husband’s political views or activities. That claim was not made, and nor does it arise in the circumstances of this case. The political connection was said to be the motive attributed to the terrorist, or other, groups. Nor do the applicants’ claims give rise to being targeted for extortion because of their perceived political views.
In relation to the additional element in the second of the applicants’ complaint, in my view, the Tribunal properly characterised the particular social group to which the applicants claimed to belong, that is, wealthy people returning from overseas, who made would be perceived to be wealthy, and who would be targeted for this reason.
In light of this, neither of the bases of claimed error, as set out (with the assistance of counsel) in the one ground of the amended application, is made out. For this reason, the application is dismissed.
I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 11 September 2009
0
10
1