FEDERAL COURT OF AUSTRALIA Applicant S320 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 197 Migration Act 1958 (Cth) ss 474(2), 477(1A) Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Sch 1 Items 8(1), (2), (3) ApplicantA& Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 142 ALR 33 Islam v Minister for Immigration & Multicultural Affairs (2000) 171 ALR 267 Rahman v Minister for Immigration and Multicultural Affairs [1999] FCA 73 Rodrigo v Minister for Immigration & Multicultural Affairs [2001] FCA 1027 APPLICANT S320 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD 1912 OF 2005 10 MARCH 2006 BENNETT J SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1912 OF 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: APPLICANT S320 OF 2003 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: BENNETT J DATE OF ORDER: 10 MARCH 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondents' costs. 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 NSD 1912 OF 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: APPLICANT S320 OF 2003 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: BENNETT J DATE: 10 MARCH 2006 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 10 October 2005 the appellant filed a notice of appeal in respect of a decision of Mowbray FM made on 21 September 2005. His Honour dismissed the appellant's application for review of a decision of the Refugee Review Tribunal ('the Tribunal') given on 21 December 1999. The Federal Magistrate found that there was no evidence of jurisdictional error in the Tribunal's reasons for decision. His Honour therefore held that the Tribunal's decision was a privative clause decision and upheld the first respondent's objection to competency based on the appellant's failure to file an application for review within the 28 days allowed by s 477(1A) of the Migration Act 1958 (Cth) ('the Act'). In doing so his Honour commented that the application was made well outside that time limit. 2 The appellant who is a citizen of Bangladesh, sought a protection visa on the basis that he had a well founded fear of persecution on political grounds by reason of his activities as a member of the Jatiya Party. 3 The Tribunal found that aspects of the appellant's evidence were 'implausible, internally inconsistent and inconsistent with the independent evidence'. The Tribunal did not accept the appellant's evidence as 'credible or reliable'. The Tribunal did, however, find: * That the appellant is a Bangladeshi national. * That he is a Jatiya Party supporter. * That he was involved in low-level political activities in support of the party. * That if he returned to Bangladesh he may become involved in Jatiya Party activities at the same low level at which he was involved previously. * Violence is endemic between the major political parties. * Violence between members of rival political parties can result in harm being suffered by those involved in clashes, as well as bystanders. * If the appellant returns to Bangladesh and becomes involved in violent political demonstrations, it is possible that he may be injured. * Violence between the various political parties and their affiliated organisations is a manifestation of the general climate of violence in Bangladeshi life. Violence is pervasive. * The violence that takes place between political supporters lacks the selective and discriminatory element which is inherent in the notion of persecution. * Supporters of various political parties are all willing to be involved in violent clashes. Harm suffered in the context of such violence does not constitute persecution within the meaning of the Refugees Convention as amended by the Refugees Protocol (collectively, 'the Convention'). * Not all members of all political parties in Bangladesh are necessarily involved in violence. * It would be possible for the appellant to return to Bangladesh and become involved in activities in support of the Jatiya Party without becoming either a perpetrator or a victim of violence. 4 The Tribunal then summarised its findings. Relevantly, it said that it was of the view that the appellant 'would be able to return to Bangladesh and engage in political activities without being at risk of persecution for a Convention reason'. The Tribunal concluded that it was not satisfied that Australia has protection obligations to him under the Convention. 5 The grounds set out in the amended notice of appeal are that his Honour, Mowbray FM: (1) erred in finding that the Tribunal made no error in its consideration of whether the appellant had a well-founded fear of persecution if he were to engage in peaceful political activities in Bangladesh; (2) should have found that there was material before the Tribunal which clearly raised the issue of whether the appellant was in danger of persecution whilst participating in peaceful political activities, and that the Tribunal failed to address that issue; and (3) erred in holding that being caught in violence in the course of participating in peaceful political activities in Bangladesh is not persecutory. 6 The Federal Magistrate accepted that the Tribunal was entitled to make findings of fact and to rely on country information, such as a report that said that individuals in low-level political positions were not targeted by government or opposition political parties. His Honour noted that, on the Tribunal's findings, any harm the appellant may suffer on return to Bangladesh would lack that selective and discriminatory element which is inherent in the notion of persecution. Accordingly, such harm could not amount to persecution. His Honour concluded that the Tribunal had found that, even if the appellant were to become involved in political activities, he might be injured but there was no real chance of persecution. 7 During the hearing of the appeal, the issues for determination were narrowed. Mr Karp, who appears for the appellant, correctly accepted that the Tribunal did consider each of the claims of the appellant. In particular, he conceded that the Tribunal had considered the claimed violent and non-violent involvement in violent political activities and also non-violent involvement in non-violent political activities. However, Mr Karp contends that, in considering the appellant's claims, the Tribunal failed properly to consider the issue of well-founded fear of persecution. 8 Mr Karp emphasises the Tribunal's finding that 'it would be possible' for the appellant to return to Bangladesh without becoming a victim of violence. He directs the Court to the Tribunal's acceptance that non-violent participants in political activities could be victims of violence. Mr Karp submits that people who involve themselves in politics in Bangladesh at any level, such as putting up posters, 'may find themselves with a well-founded fear of persecution'. He contends that the Tribunal failed to consider whether the appellant had a well-founded fear of persecution by reason of his non-violent political activities and that the Tribunal did not consider the role of the State in tolerating or controlling the violence to which the appellant would be possibly be exposed. 9 Mr Karp raises two issues: (1) whether the Tribunal failed to consider whether the harm faced by the appellant amounted to persecution for a Convention reason; and (2) whether the Tribunal failed to consider whether the possibility that the appellant would be a victim of violence by reason of his political activities gave rise to a well founded fear of persecution. Mr Karp submits that the Tribunal was obliged to ask whether the State was involved in or condoned the violence and whether it afforded protection. 10 The Tribunal cited the comments of Hely J in Rahman v Minister for Immigration and Multicultural Affairs [1999] FCA 73. The basis of the Tribunal finding there under consideration was, in the words of Hely J, that the violence 'lacks the selective or discriminatory quality which is inherent in the notion of persecution'. Having found that the appellant did not have a well-founded fear of persecution for a Convention reason there was, strictly speaking, no need to consider whether the government was able to provide effective protection.. Such observations are consistent with those of Kenny J in Rodrigo v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1027. 11 In Islam v Minister for Immigration & Multicultural Affairs (2000) 171 ALR 267, a Tribunal had found that the applicant, who had been targeted as a member of the BNP in Bangladesh, was at risk of harm if he returned to Bangladesh by reason of his political opinion. The Tribunal then found that the risk of harm faced by the applicant did not entitle him to protection resulting from his political opinion because violence is endemic in Bangladesh. At [14] Carr J observed this demonstrated a misunderstanding on the part of the Tribunal. While the Tribunal was entitled to find on the independent evidence that violence in Bangladeshi politics is endemic, his Honour said at [21] that the Tribunal should have asked why Awami League supporters had sought to injure the applicant in the past and why (as the Tribunal found) he was at risk of future harm if he returned to Bangladesh. It was then incumbent on the Tribunal to make a finding whether the government would extend effective protection to the applicant. 12 The Tribunal's finding in this case was that any harm that the appellant may experience on his return to Bangladesh was due to the general violence in that country. The appellant did not establish that there was any selective or discriminatory aspect to that exposure to violence. 13 The Tribunal accepted that the appellant may become involved in Jatiya Party activities at the same low level at which he was previously involved. At that level, the violence experienced was found by the Tribunal to be non-discriminatory, to the extent that harm may be suffered by bystanders as well as by those involved in the political clashes. Unlike in Islam, the Tribunal did not find that the appellant was targeted in any way. 14 There is no error in the Tribunal's finding that in the absence of an element of discrimination or selective treatment, harm which might be suffered by the applicant would not amount to persecution. This is the proper approach to the meaning of persecution in the Convention and answers both of Mr Karp's issues. As held by McHugh J in ApplicantA& Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 142 ALR 33, harmful conduct does not amount to persecution for the purposes of the Convention unless the conduct discriminates against the person because of their race, religion or political opinion, in a way that shows the person is being "selectively harassed". 15 The Tribunal conceded that it was possible that the appellant could return and engage in his political activities without becoming a victim of violence. These were factual findings, not an attempt to formulate the test under the Convention. These factual findings were made in the context of the Tribunal's discussion of the pervasiveness and lack of discrimination in the violence in Bangladesh. 16 The way in which the Tribunal dealt with the issue of violence occurring in the course of peaceful political activities did not indicate that it misunderstood the question before it or in any other sense failed to exercise its jurisdiction. The appellant has not established jurisdictional error on the part of the Tribunal or error on the part of the Federal Magistrate. 17 Dr Allars, who appears for the first respondent, concedes that the first respondent had incorrectly objected to the competency of the application before the Federal Magistrate. She submits that although the Federal Magistrate was technically in error in holding that the decision was a privative clause decision within the meaning of s 474(2) of the Act, his Honour was correct in finding that the Tribunal's decision was not affected by jurisdictional error and that the application should have been dismissed. The Tribunal's decision was not a privative clause decision because an application for judicial review of the decision was lodged before the commencement of Schedule 1 of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ('Amendment Act'). 18 Schedule 1, Part 2, Item 8(2) of the Amendment Act provides that the Act as amended by the Amendment Act applies if the Tribunal decision was made on or after the commencement of the schedule, being 2 October 2001, or if the decision was made before 2 October 2001 and as at that date, an application for judicial review of the decision had not been lodged. Item 8(3) relevantly defines 'an application for judicial review of a decision'. 19 On 3 May 2000 the appellant became a party to proceedings in the High Court of Australia, commenced by Ms Lie as a representative of a number of plaintiffs including the appellant. On 18 January 2000 the appellant filed an application for an order of review in the Federal Court of Australia, which was dismissed by Gyles J on 12 April 2000. By virtue of Item 8(3), Schedule 1 of the Amendment Act, both applications were 'application for judicial review of a decision'. 20 Both 'applications for judicial review' were lodged before the commencement of Schedule 1 to the Amendment Acton 2 October 2001. Accordingly the Act as amended by the Amendment Act, including the 28 day time limit on applications to the Federal Court under s 477(1A), did not apply to this Tribunal decision. Thereview provisions of the Act that preceded the changes made by the Amendment Act alsodo not apply to this Tribunal decision because those provisions have been repealed. Therefore the application was not incompetent for failure to comply with s 447(1A). 21 Mowbray FM simply dismissed the application. That order stands. 22 The appeal is dismissed and the appellant must pay the first respondent's costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 10 March 2006 Counsel for the Applicant: L J Karp Solicitor for the Applicant: Md Sirajul Haque Counsel for the Respondent: Dr M Allars Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 14 February 2006 Date of Judgment: 10 March 2006