FEDERAL COURT OF AUSTRALIA Minister for Immigration & Multicultural Affairs v Islam [2001] FCA 1681 MIGRATION – protection visa – review of decision of Refugee Review Tribunal ("Tribunal") – whether primary judge erred in finding Tribunal constructively failed to exercise its jurisdiction – denial of freedom of political expression as form of persecution – failure of respondent to articulate claim for persecution Rahman v Minister for Immigration & Multicultural Affairs [1999] FCA 73 referred to Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132 referred to Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85 followed MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v KAZI ROBIUL ISLAM N 845 OF 2001 CARR, CONTI AND STONE JJ 20 DECEMBER 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 845 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPELLANT AND: KAZI ROBIUL ISLAM RESPONDENT JUDGE: CARR, CONTI AND STONE JJ DATE: 20 DECEMBER 2001 PLACE: SYDNEY THE COURT ORDERS THAT: 1. the appeal be allowed; 2. the orders made by the primary judge on 4 May 2001 be set aside; 3. the decision of the Refugee Review Tribunal dated 17 August 2000 be affirmed; 4. the respondent pay the appellant's costs of the appeal and of the proceedings at first instance. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 845 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPELLANT AND: KAZI ROBIUL ISLAM RESPONDENT JUDGE: CARR, CONTI AND STONE JJ DATE: 20 DECEMBER 2001 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: introduction 1 On 17 August 2000, the Refugee Review Tribunal ("Tribunal") affirmed the decision of a delegate of the appellant Minister refusing to grant a protection visa under the Migration Act 1958 (Cth) ("the Act") to the respondent. This is an appeal from a decision of a judge of this Court ordering that the decision of the Tribunal be set aside and that the matter be remitted to the Tribunal (differently constituted) for determination according to law. procedural history Delegate's decision 2 The respondent entered Australia on a false passport on 21 November 1998. His application for a protection visa was refused on 26 March 1999. In stating her reasons for that decision the Minister's delegate made the following comment: "I accept that during 1997 the [Bangladesh Nationalist Party] led opposition organised numerous supporters who participated in street demonstrations and that the applicant was involved in these demonstrations. I accept that, after police and [Awami League] supporters attacked demonstrators, the applicant had to be hospitalised. The US Dept. of State Reports on Human Rights Practices and many other sources of information indicate that there is a robust political culture involving violence from all political parties in Bangladesh. I consider, therefore, that unless the applicant chooses to be involved in incidents of violence committed by members of all political parties, the risk of him suffering harm is remote and does not amount to persecution for his political opinion." 3 In forming this conclusion the delegate specifically relied on the comment of Hely J in Rahman v Minister for Immigration & Multicultural Affairs [1999] FCA 73 at [10]: "The fact that all political parties are from time to time involved in armed clashes with the police and with each other, as part of the political milieu of Bangladesh, does not mean that there is persecution within the meaning of the Convention, because the violence lacks the selective or discriminatory quality which is inherent in the notion of persecution, and because it lacks the requisite "official" quality in the sense that it is official, or officially tolerated, or uncontrollable by the authorities of Bangladesh". Appellant's claims before Tribunal 4 The primary judge's summary of the respondent's claims before the Tribunal (not challenged by either party) is as follows: "The applicant is a Bangladeshi national. He was born on 20 October 1969 in Faridpur, into a family allegedly closely associated with the Bangladesh National Party ("the BNP"). During his tertiary studies in the late 1980s he was elected Vice-President of the Student Union, representing the student wing of the BNP. Thereafter, as the Tribunal put it, "essentially he was an ordinary member of the BNP in the Faridpur district". In 1996 the applicant claims to have "worked for" the local BNP candidate, a former Minister, in a national election campaign and to have made a "tremendous effort" to help him win the parliamentary seat. The Tribunal accepted the applicant's claim to have assisted in the election. In September 1998, according to the applicant, he was involved in organising a protest rally in support of a BNP leader and former Minister, Mr Obaidur Rahman who had, in the applicant's words, been "arrested in the name of a fake trial". The Tribunal also accepted that claim. The applicant's further claim about that incident was that police and "Awami thugs", that is, persons associated with the rival political party, the Awami League, "attacked [the] procession and [he] was beaten severely and was admitted into a hospital for treatment". He claimed that after this incident he was "shocked and the members of [his] family advised [him] to leave the country". The applicant said that, in consequence of this and other claimed events not accepted by the Tribunal, he decided to leave the country. The applicant arrived in Australia on 21 November 1998 and lodged his application for a protection visa on 30 December 1998. On 26 March 1999, a delegate of the respondent Minister refused to grant the applicant a protection visa. On 23 April 1999, the applicant sought a review of that decision by the Tribunal." The Tribunal's decision 5 The Tribunal rejected the respondent's claims that he was a prominent member of the BNP and a significant political figure, that a high profile member of the Awami League had the power and the intention to harm him and that false charges were brought against him and a warrant had been issued for his arrest. 6 The Tribunal accepted that the respondent does not support the present government of Bangladesh and that he fears that, if returned to Bangladesh, the present authorities will harm him because he is a member of the BNP. It also found that the respondent was actively involved in student politics in 1988-9 and that he assisted the BNP during the 1996 election. In addition it found that the respondent had been beaten during a political rally in 1998. It commented that: "The applicant's description of the incident indicates that both BNP and Awami League supporters were implicated in the violence and the police intervened. The Tribunal is not satisfied by the evidence that this incident is indicative that the Awami League or the police have a particular interest in the applicant or that this isolated incident is indicative of what will happen to the applicant in the future. The applicant has gone to great lengths to avoid similar incidents, to the extent that he decided to leave the country, and it is the Tribunal's view that if indeed the applicant wishes to avoid the political violence of Bangladesh he can do so by not attending rallies such as the one he described." 7 The Tribunal held that the respondent did not satisfy the criterion for the grant of a protection visa set out in s 36(2) of the Act because his fear of persecution was not well- founded. It stated: "The Tribunal is not satisfied by the available information that the government commonly uses the SPA [Special Powers Act] and false charges against political opponents as the applicant has claimed. His own circumstances indicate that political opponents are able to express their political opinion without being charged under the SPA or having false charges brought against them. The Tribunal noted that there have been instances when such measures have been used against "opposition leaders and activists". However, the Tribunal is not satisfied that the applicant is either an opposition leader or an activist who has or will attract particular interest by the government or the authorities in Bangladesh. After considering the applicants' [sic] claims, in conjunction with relevant information from external sources, the Tribunal has decided that it is "mere speculation" by the applicant that he will be detained under the SPA legislation, or have false charges laid against him, because he supports the BNP in Bangladesh. Therefore, the Tribunal is not satisfied that his fear is well- founded." The decision of the primary judge 8 The respondent's application for an order of review of the Tribunal's decision in this Court was based on s 476(1)(e) of the Act although he did not identify any details of the alleged breach. In reviewing the Tribunal's decision the learned primary judge concentrated on its conclusion that the respondent could avoid political violence by not attending political rallies such as the 1998 rally referred to at [6] above. His Honour expressed concern at this conclusion given his view that the respondent is, "in possession of findings from the Tribunal to the effect that he had a history of political activism spanning 10 years, including significant student leadership roles and recent involvement in the organisation of a political rally, as well as actual participation in the rally." 9 The primary judge relied on his decision in Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132 ("Win"). In Win his Honour said at [20]: "The principle, it seems to me, is that a denial of such civil rights would amount to persecution when that denial is so complete and effective that it actually and seriously offends a real aspiration so held by an asylum seeker that it can be fairly said to be integral to his or her human dignity. It is not fatal to such a claim of persecution that the claimant fails to show that he or she is a leading exponent of a claim to, or the wish to, exercise such rights, let alone that he or she exhibits a capacity for martyrdom. The Convention aims at the protection of those whose human dignity is imperilled, the timorous as well as the bold, the inarticulate as well as the outspoken, the followers as well as the leaders in religious, political or social causes, in a word, the ordinary person as well as the extraordinary one. But, of course, the Convention did not aim at providing a universal right to change countries for every inhabitant of every oppressively ruled society on earth, however important civil and political rights may, as a matter of mere intellectual persuasion, be to such an inhabitant. The Convention was intended to relieve against actual or potentially real suffering." 10 Applying that principle to the respondent's situation the primary judge stated: "It was implicit in the [respondent's] claim that he is the sort of person who would want to continue to express his political opinion and the Tribunal's findings do not negate this. It cannot necessarily be concluded from the Tribunal's reasons that for the [respondent] to be practically unable, for want of effective state protection against serious violence, to participate in public political assemblies in Bangladesh would not, in the restrictive sense explained in Win, affront his human dignity. It may be possible to conclude that the [respondent] is driven by his conscience, in a way integral to his human dignity, to wish to express his political positions publicly. I stress that it also may not be possible. In any case, the matter should have been examined." 11 His Honour concluded that: "In my opinion the Tribunal erred within the meaning of s 476(1)(e) in failing to consider this issue and make appropriate findings and/or s 476(1)(c) in not recognising and addressing that matter, and making appropriate findings, thereby constructively failing to exercise its jurisdiction." The appeal 12 The appellant challenged the decision of the primary judge on the basis that the respondent had not claimed that he feared persecution constituted by a complete denial of his freedom of political expression and that, in any event, the findings made by the Tribunal would not support such a claim. In making this claim the appellant recognised that the primary judge was relying on an implicit claim of a denial of freedom of political expression rather than an explicit claim; see [10] above. 13 The principle in Win, on which the primary judge relied,is said to be that the relevant denial of civil rights must be "so complete and effective that it actually and seriously offends a real aspiration" that is "integral to [the asylum seeker's] human dignity". The situation must be one that involves "actual or potentially real suffering". For the appellant it was submitted that even if, as a matter of principle, the views expressed in Win are correct, there is no basis for its application in this case. 14 The case the respondent presented to the Tribunal was that he had fled Bangladesh in fear of his life, occasioned by the beating he received at the political rally he organised, the false cases filed against him and the warrant issued for his arrest. However, the only aspect of this claim accepted by the Tribunal is that the respondent was beaten at a rally in circumstances that did not support a claim to have been targeted for his political opinions. The Tribunal concluded that the respondent could avoid the harm he had experienced in the past by not attending such rallies. The Tribunal did not accept that all avenues of political opposition would be closed to the respondent. In the passage quoted at [7] above the Tribunal referred to the respondent's own circumstances as supporting the conclusion that there was some freedom to express political opinion opposed to the current government of Bangladesh, without the consequence of charges being brought against him. 15 There is nothing in the facts as found by the Tribunal to suggest that the respondent had claimed (expressly or by implication) that non-attendance at political rallies would involve such an infringement of his right to express his political opinions as to constitute persecution or be capable of constituting persecution or cause the kind of suffering contemplated in Win. 16 The respondent's application for an order of review of the Tribunal's decision is similarly focused on his concern for his physical safety. It alleged that the Tribunal had come to an incorrect conclusion in not accepting the claims and evidence presented by the respondent. In this appeal the Court permitted a member of the Bangladesh community to make submissions on the respondent's behalf. Those submissions similarly related to the fact merely that the Tribunal had not accepted that the respondent had a prominent political profile in Bangladesh. 17 In Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85 at [13], Wilcox J confirmed his view, expressed in earlier cases, that in certain circumstances the Tribunal has an obligation "to make inquiries in relation to a particular fact" (emphasis added). His Honour was at pains to point out however that: "…in common with other members of the Court, I have also said that it is no part of a tribunal's function to make good a case claimed by the applicant. Still less would it be part of a tribunal's case to make good a case, which the applicant has not articulated, only because there is some evidence of elements of a claim." 18 In our opinion, the conclusion of the primary judge appears to require that the Tribunal make good a case that the respondent not only has not articulated but one that would be inconsistent with the facts as found by the Tribunal, and at best purports to present some elements of a claim. 19 It follows that the appeal should be allowed and the orders made by the primary judge on 4 May 2001 should be set aside. The decision of the Tribunal should be affirmed and the respondent ordered to pay the appellant's cost of the appeal and the proceedings at first instance. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 20 December 2001 Counsel for the Appellant: Mr J Basten QC Solicitor for the Appellant: Sparke Helmore Counsel for the Respondent: The respondent appeared in person Date of Hearing: 6 November 2001 Date of Judgment: 20 December 2001