FEDERAL COURT OF AUSTRALIA

Islam v Minister for Immigration & Multicultural Affairs

[2000] FCA 362

ZAHIRUL ISLAM v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

W 125 of 1999

CARR J

27 MARCH 2000

PERTH

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal, made on 26 October 1999, be set aside.

2.         The matter be remitted to a differently constituted Tribunal for re-hearing, with or without new evidence, in accordance with law.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     This is an application for an order of review of a decision of the Refugee Review Tribunal made on 26 October 1999 by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.  The applicant, who is a citizen of Bangladesh, arrived in Australia by boat and without any travel documents on 20 May 1999.  On 17 June 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (“the Department”).  On 11 August 1999 a delegate of the Minister refused to grant him a protection visa.  On 13 August 1999 the applicant sought review of the delegate’s decision by the Refugee Review Tribunal. 

Application for Order of Review

2                     The applicant was unrepresented.  His application is in a form common to several other applications recently lodged by applicants from the Port Hedland Detention Centre.  The grounds of the application were stated as follows:

“(a)     The decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both.

(b)       The decision involved an error in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence and it failed to rationally consider the probative evidence that was before it.”

Did the Tribunal Err in Law?

3                     The applicant being unrepresented and not being able to speak English was, not surprisingly, unable to identify the legal errors which, in his application, he asserted had been made by the Tribunal. 

4                     Accordingly I have read and re-read the Tribunal's reasons to see whether they disclose legal error.  In my view, they disclose four misapprehensions about the legal meaning of persecution for reasons of a political opinion which, by their cumulative effect, fall within the first of the above-mentioned grounds of application.  I shall explain, by reference to the applicant’s claims and the Tribunal’s reasons, how I have reached that conclusion.

5                     In summary, the applicant’s claims arose out of his position and work as publicity secretary for the Bangladesh National Party (“the BNP”) at his college/university in Comilla up to 1992 and thereafter undertaking the same role in the BNP branch at Mogbazaar, a suburb of Dhaka.  The BNP has been in opposition to the Government of Bangladesh since June 1996.  The applicant’s claims of persecution can be summarised as follows:

·          after 1996, many BNP meetings attended by the applicant had been disrupted by bombs (the Tribunal ascertained that by bombs the applicant meant Molotov cocktails – which seems reasonable) thrown by members of the Awami League which is now in government;

·          in 1997 Awami League members threatened to kill him if he did not stop his activities with the BNP.  They repeatedly went to his place of business in a mob of about fifteen Awami League supporters at a time.  Sometimes they came when he was away on business and they would ask his employee where he was.  On one occasion they looted his business and said that they would do so again if he did not stop his BNP activities;

·          again in 1997, Awami League supporters sought him at his home.  When his mother had told them that the applicant was not there, they had become very angry and had thrown a Molotov cocktail at his home which resulted in injury to his sister;

·          also in 1997, the club to which the applicant belonged, the Mogbazaar Kisholoy Club, was attacked by Awami League supporters and destroyed by fire;

·          in January 1999, Awami League supporters had brought false charges against the applicant and other BNP members alleging that they possessed guns and explosives;

·          he had gone into hiding until April 1999 when he left Bangladesh to come to Australia; and

·          since his departure his home had been attacked twice due to his BNP work.

6                     The Tribunal made the following relevant findings:

“I accept that the applicant had been publicity secretary for the BNP at his college and later in his BNP Dhaka suburban branch over a period of years. 

. . .

I find, in short, that the applicant had a stature commensurate with his position in the party, which is to say that he was a minor party official.  As a minor party official, or even as a party activist of no rank, I accept that the applicant was threatened and abused by rival parties, that his clubhouse had been burned down, that his sister had been injured in a Molotov cocktail attack aimed at him, and that he could be at risk of future harm if he returned to Bangladesh and took part again in politics.”

7                     I pause to observe that this is a strong factual finding, in the applicant’s favour, of past and likely future harm.

8                     In the next paragraph of its reasons the Tribunal acknowledged that:

“… as a party official of minor standing the applicant experienced violence in confrontations with the AL while taking part in BNP activities such as propaganda or attending rallies …”

9                     The Tribunal then rejected claims that Awami League members would be targeting the applicant’s home even in his absence.  It gave its reasons for that particular finding and I see no legal error in that regard.  The Tribunal then said this:

“In relation to the harm that I accept did occur, and could occur in the future to the applicant were he to become active in politics once again on return to Bangladesh, I find that such harm occurs not because supporters of the BNP are persecuted for their political opinion but because of the general level of violence in Bangladesh affecting all parties.  [I think it is clear from the context that the Tribunal was referring to political parties].  Independent evidence shows that Bangladesh politics is of a “rough-and-tumble nature” and is pervaded by violence and that opposition parties use actual or threatened violence to enforce general strikes at national and local level [citing sources].

. . .

The Department of Foreign Affairs advises that political violence in Bangladesh:

         … appears to be a result of fighting between different factions of political parties or student organisations and largely seems to revolve around retaliation killings, retaliation attacks and personal vendettas rather than as a result of political movement or political suppression by one group against another or by the Government against Opposition parties.

            - CIS Country Information Report No. 497/96 of 7/6/98, CX 17304.

The Tribunal finds, on the independent evidence, that violence in Bangladeshi politics is endemic and that being harmed in such violence does

      *    not of itself demonstrate that one party or the other is persecuted.  It is pertinent to note that the independent evidence cited above supports the non-binding observation of Hely J in a separate case involving a Bangladeshi, Rahman v MIMA [1999] FCA 73, 10 February 1999, that:

         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. (at 10)

On the independent evidence above, therefore, I find that simply being threatened and involved in violent altercations and armed clashes with rival

      *    parties is common among all parties in Bangladesh and does not of itself establish that the applicant has been persecuted or at risk of persecution.  Even the fact that the applicant had a Molotov cocktail thrown at his home

      *    does not in itself establish that he is being persecuted given that his own party throws Molotov cocktails/bombs at its rivals (sources cited) …Despite the general level of violence there is no independent evidence to support the applicant’s claim that “opposition leaders are killed in their hundreds in Bangladesh”.

[I interpolate here to note that the above passages mark the point at which, in my opinion, it emerges that the Tribunal has misdirected itself as to what constitutes persecution for reasons of political opinion.  First, the Tribunal’s habit of referring to harm, threats, violent altercations, armed clashes and the throwing of a Molotov cocktail in terms of “of itself” or “in itself” at the points above where I have inserted asterisks, indicates, in my opinion, legal error by demonstrating a tendency, on the Tribunal’s part, to compartmentalize rather than assess the persecution claims as a whole.  Secondly, in my opinion, the Tribunal showed a misapprehension of the legal meaning of persecution when, having found that the applicant had a Molotov cocktail thrown at his home (aimed at him), it held that this did not constitute persecution because his own party threw Molotov cocktails at its rivals.]

It cannot be said that supporters of the BNP such as the applicant face persecution for their political opinions as independent evidence shows that the BNP is a thriving Opposition force despite losing power to the Awami League in the 1996 general election.  It has 116 seats compared with the Awami League’s 146 after balloting said – contrary to the applicant’s claims – to have been conducted freely and fairly. …”

10                  The Tribunal then reviewed evidence relating to the calling of strikes by the BNP since 1996, noting that members of both parties sustained harm from such activities.  The Tribunal referred to what it described as the aggressive political tactics engaged in by the BNP including the taking of mass violent action against the Awami League for harming BNP members.  It concluded its assessment of this part of the applicant’s claims by saying:

“Given the above independent evidence, I find that as a party official threatened with violence by another party, the applicant will receive protection from his own party.”

11                  The Tribunal made absolutely no reference to the question whether the Government of Bangladesh was able or willing to provide effective protection to the applicant from the risk of future harm the existence of which the Tribunal had earlier accepted.  The matter of ineffective governmental protection was raised in written submissions to the Tribunal (see pages 70, 72, 74 and 75 of Exhibit R1).

12                  The Tribunal then moved on to consider the allegedly false criminal charges.  Although there is an oblique reference to protection in relation to crimes of violence in this portion of the Tribunal’s reasons (in the last complete paragraph on p 10 of its reasons), I am satisfied that the Tribunal was at that stage concentrating exclusively on what might happen to the applicant in relation to the criminal charges which he said had been falsely brought against him.  I see no error of law in the manner in which the Tribunal dealt with the claims relating to the criminal charges, the prospect of the applicant returning to Bangladesh without proper papers, and the matter of the applicant having absconded from justice.

13                  The Tribunal then drew in its conclusions in a paragraph which included the following:

“In sum, I accept that the applicant had been threatened and that his home had been attacked while he was in Bangladesh by members of the rival Awami League.  However, I find that such harm, or the risk of such harm in the future does not oblige Australia to grant him protection under the Convention for persecution resulting from his political opinion as the kind of violence he describes is endemic in Bangladesh and practised by all parties against other parties.”

14                  The facts found by the Tribunal in the passages which I have set out above include a finding that the applicant could be at risk of future harm if he returned to Bangladesh and took part again in politics.  The Tribunal appears to have accepted that such harm was serious enough to constitute persecution if it were inflicted for a Convention reason.  Its finding that such harm occurs not because supporters of the BNP are persecuted for their political opinion but because of the general level of violence in Bangladesh affecting all parties, reveals in my view, a legal misunderstanding on the Tribunal’s part of the meaning of the expression “… for reasons of … political opinion …” in the Convention.  I return to that matter below.

15                  Furthermore, having found a likelihood of persecution, it was, in my opinion, incumbent upon the Tribunal to consider whether the Government of Bangladesh could and would extend effective protection to him.  In my view, it should have made a finding on the question of effective governmental protection.  See Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543; Minister for Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95 and Minister for Immigration and Multicultural Affairs v Kandasamy [2000] FCA 67. 

16                  At the hearing of this application, in the course of presenting the respondent’s case, Mr P R Macliver submitted that the Tribunal was entitled to rely upon all the independent evidence it had, including the assessment made by Hely J in Rahman to the effect that the violence was not uncontrollable by the authorities of Bangladesh.  Of course, the Tribunal was perfectly entitled to find (as it did in the passages which I have cited at paragraph 9 above), on the independent evidence, that violence in Bangladeshi politics in endemic.  It then said that such violence does not of itself demonstrate that one party or the other is persecuted.  I have already expressed some of my views on that aspect.  The question under immediate consideration is whether the Tribunal made a finding that the Bangladesh Government could or would provide the applicant with effective protection from physical violence at the hands of rival political parties.  The only evidence on that matter was contained in the applicant’s submissions.  The independent evidence to which the Tribunal had recourse on the misuse of the judicial system was confined to the matters of false (politically motivated) charges and imprisonment for political reasons, not with official protection from political violence.  In those circumstances, Mr Macliver’s submissions (see p 13 of the transcript) amount to an assertion that the Tribunal adopted Hely J’s assessment that the violence was not uncontrollable by the authorities of Bangladesh.  With all due respect, I do not think that that is a fair reading of the Tribunal’s reasons.  The Tribunal simply said that it was “pertinent to note” that the independent evidence about the general level of violence in Bangladesh politics “… supports the non-binding observation of Hely J in a separate case” i.e. Rahman.  It then set out the quote from Hely J’s reasons in Rahman which I have reproduced above.  That quotation referred to the political violence and gave what amounted to four reasons why it did not amount to persecution in that case.  I do not think that the citation from Rahman and the sentence immediately preceding that citation amounts to a finding either that the violence was controllable by the authorities of Bangladesh or a finding that the Bangladesh Government could or would provide the applicant with effective protection.  Hely J could not have been making an assessment in Rahman of whether the violence was uncontrollable by the Bangladesh authorities.  That is a pure matter of fact, within the exclusive province of the Tribunal.  Anything to be derived from Rahman would have to be a proposition of law.  Presumably in Rahman the Tribunal had made a finding of fact that the violence was not uncontrollable by the authorities as at the time of its decision on 6 October 1998 and for the reasonably foreseeable future.

17                  This case is to be distinguished from Ahmed v Minister for Immigration and Multicultural Affairs [2000] FCA 123 where, in the context of similar political clashes in Pakistan, the Tribunal had made a finding of effective government protection.  If the Tribunal in the present matter thought that there was sufficient governmental protection, the applicant was entitled to a clear finding from it to that effect.  On the present state of the authorities (see Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60 at paras 12-16) such failure constitutes reviewable error.  But no such error was relied upon by the applicant in his grounds of review.  However, that error also discloses, in my view, error in the interpretation of the Convention definition of what constitutes a refugee.  The question for the Tribunal was whether the applicant’s fear of persecution was well-founded.  The Tribunal, having found as a fact that the applicant could be at risk of future harm if he returned to Bangladesh and took part again in politics, should have turned its mind to the question whether the Bangladesh Government could or would provide him with effective protection.  As J.C. Hathaway observes in “The Law of Refugee Status” (1992) pp 104-105:

“… persecution may be defined as the sustained or systemic violation of basic human rights demonstrative of a failure of state protection.”

18                  As I have mentioned earlier, I think that the Tribunal also erred in its interpretation of the Convention definition of a refugee in its characterisation of the harm previously done to the applicant in the violent clashes between the two political parties and which was likely to be inflicted again if he returned to Bangladesh.  As Hill J observed in Mohamed v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, No 485 of 1998, 11 May 1998) at 20:

“The fact that a recurring pattern can be loosely described as communal violence or even civil war does not mean that it cannot amount to “persecution”.  It is necessary to examine the situation further in an attempt to determine the purpose which gives rise to the violence or danger.”

19                  In my opinion, the present matter is comparable to the recent cases involving clan warfare in Somalia between members of two different particular social groups.  It may well be that the two political parties in this case are, relevantly, also particular social groups.  The authorities show that the “Convention ground” reasons or categories can overlap.  In Minister for Immigration and Multicultural Affairs v Abdi [1999] FCA 299 (a decision of a Full Court of this Court) the relevant social groups were clans in Somalia.  The Full Court declined to follow the House of Lords decision in Adan v Secretary of State for the Home Department [1998] 2 WLR 702.  At 38 their Honours said:

“In relation to Adan, we do not accept that a clan or race-based war cannot, without some further and differential degree of risk, amount to persecution in the sense that an individual is selected out for persecution treatment because he is a member of a particular clan.  If evidence establishes, for example, that the objective of a war is to harm the opposing party for one or more Convention reasons, then “persecution” will be made out.  It is somewhat odd to suggest that claimants are precluded from refugee status solely on the ground, for example, that a conflict based on race or religion which gives rise to the fear, can be described as a “war”.  The task of the decision-maker in these circumstances must be to investigate the reasons underlying the war and the way it is conducted in order to ascertain whether it is based on a Convention ground or has an objective which is covered by the Convention, namely: race, religion or other stated reason.  This responsibility cannot be curtailed by a conclusion that there is a state of war.”

20                  [See also the decision of an identically-constituted Full Court in Ibrahim v Minister for Immigration and Multicultural Affairs [1999] FCA 374.  Abdi was approved and followed by a differently-constituted Full Court in Minister for Immigration and Multicultural Affairs v Jama [1999] FCA 1680, after the High Court had on 20 September 1999 granted special leave to appeal in both Abdi and Ibrahim.]

21                  Similarly, in my view, in this case it was not enough for the Tribunal to find that violence in Bangladeshi politics is endemic, that the general level of violence in Bangladesh affects all political parties, and that Bangladesh politics is of a “rough and tumble nature” and is pervaded by violence.  It should have asked why the 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.  The answer might well emerge from part of the Tribunal’s key finding of fact, i.e. because he “… [takes] part again in politics” as a BNP party official.  This finding appears twice on p 7 of the Tribunal’s reasons.

22                  The principles explained by the Full Court in Abdi, Ibrahim and Jama should, in my view, be applied to the very similar approach taken by the Tribunal in this case to the matter of violence exhibited to each other by members of two opposing political groups. 

23                  In summary, I consider that the Tribunal’s reasons demonstrate that it did not ask itself the right question.  Its decision, in my opinion, involved an incorrect interpretation of the applicable law about persecution for a Convention reason.  This was because it:

·          compartmentalised the various acts of violence perpetrated on the applicant, rather than assessing his persecution claims as a whole;

·          it misapprehended the legal meaning of persecution when it found that although the applicant had a Molotov cocktail thrown at his home (aimed at him), this did not constitute persecution because his own party threw Molotov cocktails at his rivals;

·          it did not consider and make a finding on the question of effective government protection; and

·          it failed to determine why the applicant will be at risk of future harm if he returned to Bangladesh i.e. would the reason be sufficiently related to his political activities (or membership of a particular political party) as to be properly characterised as being “by reason of” his political opinion (or membership of such party, being a particular social group).

Conclusion

24                  For the foregoing reasons, the Tribunal’s decision will be set aside and the matter remitted to a differently-constituted Tribunal for a decision according to law.

Associate:

Dated:              27 March 2000