FEDERAL COURT OF AUSTRALIA

Islam v Minister for Immigration & Multicultural Affairs [2001] FCA 525

IMMIGRATION – review of decision of Refugee Review Tribunal (“the Tribunal”) - applicant for refugee status alleged political activity over a number of years – Tribunal did not consider whether applicant could not express his political opinion safely if returned and whether political expression was central to his being – Tribunal’s findings did not negate those possibilities – persecution may in some circumstances taken the form of denial of civil rights such as political expression – circumstances may give rise to a requirement on Tribunal to consider ability of applicant to exercise certain civil rights.

Migration Act 1958 (Cth), ss 476(1)(c), 476(1)(e)

Abebe v Commonwealth (1999) 197 CLR 510, referred to

Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132, applied

Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287, cited

Sinclair v Maryborough Mining Warden (1975) 132 CLR 473, cited

Cho v Minister for Immigration & Multicultural Affairs [1998] FCA 1663, referred to

Oo v Minister for Immigration & Multicultural Affairs [2001] FCA 348, referred to

KAZI ROBIUL ISLAM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1029 of 2000

MADGWICK J

4 MAY 2001

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be allowed.

2.                  The decision of the Refugee Review Tribunal given on 17 August 2000 be set aside and the matter be remitted back to the Refugee Review Tribunal, differently constituted, for determination according to law.

3.                  The respondent pay the applicant’s costs.

REASONS FOR JUDGMENT

HIS HONOUR:

1                     This is an application for the limited form of judicial review available under s 476(1) of the Migration Act 1958 (Cth) (“the Act”).  The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 17 August 2000, affirming a decision of a delegate of the respondent Minister, refusing the grant of a protection visa to the applicant.

2                     The applicant, Mr Islam, claims that the Tribunal made reviewable legal errors under s 476(1)(e) of the Act.  Whether the applicant is a person to whom Australia has obligations depends on whether he is a refugee as defined by the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).  Article 1A(2) of the Convention defines a refugee as a person who:

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such a fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his formal habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

The applicant’s claims

3                     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”.

4                     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. 

5                     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. 

6                     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

7                     The Tribunal appears to have accepted that a major reason for the applicant having left Bangladesh was his beating at the rally.  The Tribunal, in its “Findings and Reasons”, said:

“After considering information from external sources cited above the Tribunal is satisfied that despite the volatile nature of political life in Bangladesh, ‘members of opposition political parties generally do not risk harm for holding or expressing anti-government views … The Tribunal noted that prominent political figures, in the course of the complicated political manoeuvring that appears to be a constant feature of political life in Bangladesh, have been harmed by political opponents.  However, the Tribunal is not satisfied that the applicant is such a prominent figure or that he is of particular interest or concern to the government because of his activities with the BNP.

The applicant claimed that during a political rally in 1998 he was beaten.  He stated that it was Awami League supporters and the police who beat him.  After considering the applicant’s description of the incident, and information from external sources regarding political rallies in Bangladesh and how they frequently became violent, the Tribunal accepts the applicant’s claim that he was beaten during a political rally.  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.”  (Emphasis added)

8                     The Tribunal took the view that it was “not satisfied as to the applicant’s general credibility and has reached the conclusion that the applicant did not present a truthful account of his circumstances in Bangladesh”.  In particular, the Tribunal rejected claims by the applicant that:

·        after his student days, he was a “high profile and active member of the BNP” and because of that, he would be at grave risk from Awami League zealots;

·        a particular political adversary from his student days now had the “power and intention” to harm the applicant; and

·        “false cases” (criminal charges) that may have been brought against him were a motivating factor in the applicant’s departure from his country and unwillingness to return.

9                     It is to be remembered, of course, that in Abebe v Commonwealth (1999) 197 CLR 510, Gummow and Hayne JJ observed at 577:

“…the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.  But those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way in which the Tribunal reached its decision.”

10                  The Tribunal also said in its reasons for decision:

“The Tribunal asked the applicant if he participated in any BNP related activities since he arrived in Australia.  He replied that he attended a few social gatherings.”

11                  The situation in Bangladesh, so far as is relevant, appears from the following extracts from independent materials referred to by the Tribunal:

“The Awami League exercises sufficient control over its own members and over the police to be able to control violence against the opposition, but … it may not always use its powers to do so.

…

Members of opposition political parties generally do not … risk harm for holding or expressing anti-government views.  Participation in rallies and demonstrations, particularly those called during the regular general strikes (hartals), clearly increases the risk of being exposed to harm, as such meetings quite often turn violent.

…

The Home Affairs Ministry controls the police and paramilitary forces, which bear primary responsibility for maintaining internal security.  Civilian authorities’ control over the police is weak, and there is widespread police corruption and lack of discipline.  Police officers committed numerous serious human rights abuses…

The Government continued to restrict or deny many fundamental rights, and failed to prevent or punish abuses committed by others.  Police committed a number of extrajudicial killings, and some persons died in police custody under suspicious circumstances.  Police routinely used torture, beatings, and other forms of abuse while interrogating suspects.  Police frequently beat demonstrators, at times Members of Parliament (M.P.’s).  The Government rarely convicts and punishes those responsible for torture or unlawful deaths. … The Government continued to arrest and detain persons arbitrarily, and to use the Special Powers Act (SPA) and Section 54 of the Code of Criminal Procedure, which allow for arbitrary arrest and preventive detention, to harass political opponents and other citizens by detaining them without formal charges.  The Government filed numerous criminal cases against opposition leaders and activists; at least some times, these charges were false.

…

Violence, often resulting in killings, is a pervasive element in Bangladeshi politics … Supporters of different political parties, and sometimes supporters of different factions of one party, often clash with each other and with police during rallies and demonstrations.  Awami League supporters, often with the connivance and support of the police, violently disrupted rallies and demonstrations of the opposition parties … which resulted in numerous deaths.

…

Political life in Bangladesh has a rough and tumble nature difficult for outside observers to comprehend.  Violence among political parties, much of it attributable to criminal elements, is an unfortunate aspect of a relatively new and still maturing political process.  Attacks by party members on members of other parties occur with some frequency.  Historically, the party heading the government has used the resources of the government to undermine the opposition, and the opposition parties have made a concerted effort to disrupt the day-to-day operations of the government.

Chronic student violence, frequently leading to broader political instability, has been a continuing problem in Bangladesh.  The student groups are generally more radical than the parent parties. … The parties often use their student organisations as shock troops to attack and disrupt rallies and activities of opponents.  Frequently, fighting erupts between factions of the same organization.  In many cases, student groups have become little more than gangs of armed thugs engaged primarily in criminal activity, not politics or academic pursuits …

The Tribunal noted that strikes and rallies organised by the BNP continue in Bangladesh”.

Conclusions

12                  There appears to have been ample evidence to justify a possible conclusion that, as the Tribunal implicitly conceded in the passage quoted above at para 7, if the applicant were to return and participate in any political rallies, there would be a well-founded fear that he would be beaten by Awami League supporters and/or police and that the ruling Awami League government would be unable or unwilling to protect him against this.  Notwithstanding that the applicant exaggerated his case and that his demonstrated interest in Bangladeshi émigré politics in Australia appears to have been low- key, he 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. 

13                  In these circumstances it seems to me that the Tribunal erred by dismissing the prospect that the applicant might be injured at a rally, on account of his political opinions and/or the expression of them (by attending the rally), with the observation that the applicant

need not attend such rallies.  In some cases, Convention persecution may take the form of an effective prohibition on the exercise of political rights. 

14                  I attempted to deal with similar considerations in Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132.  In Win I concluded (the reasoning supporting the conclusions is too lengthy to quote):

“There appears to be no reason why … a denial of freedom to express one’s political opinion may not, of itself, constitute persecution.  …

However the mere fact that a particular right is denied is not, in my opinion, necessarily enough to establish refugee status.  It will generally also be important to ascertain the importance that the asylum-seeker places upon the exercise of that particular right.  …

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.

It is unclear exactly which civil and political rights the Convention extends to protect.  Free speech, however, upon the authority of Mason CJ and McHugh J in Chan is clearly one of them.  It is unnecessary, in this case, to determine the limits of such protected rights … However, the Universal Declaration of Human Rights 1948 (“UDHR”) and the International Covenant on Civil and Political Rights 1966 (“ICCPR”) may be a good starting point.”

15                  Articles 19 and 21 of the ICCPR respectively provide:

“Article 19

1.                  Everyone shall have the right to hold opinions without interference.

2.                 Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of

all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3.                  The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities.  It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a)         For respect of the rights or reputations of others;

(b)         For the protection of national security or of public order … or of public health or morals.

Article 21

The right of peaceful assembly shall be recognised.  No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order … the protection of public health or morals or the protection of the rights and freedoms of others.”

16                  It seems to me that the kind of approach I took in Win is also relevant here because of the factual findings of the Tribunal.  It was implicit in the applicant’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 applicant 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 applicant 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 so possible.  In any case, the matter should have been examined.  If it is possible so to conclude, he might have been assessed as having a well-founded fear of persecution on account of his political opinions.  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.  (As to s 476(1)(c) see Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 and Sinclair v Maryborough Mining Warden (1975) 132 CLR 473).

Was a claim of fear of persecution by denial of political free expression sufficiently raised?

17                  It is close to a borderline matter whether the issue presently of concern was sufficiently clearly apparent in the materials before the Tribunal that it was reviewably erroneous not to deal with it.  Certainly the applicant did not expressly raise the matter.  It seems to me however that, consistently with what was said in Sellamuthu at para 16, the matter should be regarded as having sufficiently arisen if the case of the applicant is looked at as a whole.  Although the applicant had a migration agent, he was not legally represented and the Tribunal appears to have had little useful help in considering the material elements of the case.  Nevertheless, it was clearly the applicant’s position that he was a seriously politically engaged person, that he feared that politically motivated violence might befall him and that the violence at the rally he organised was a precipitating factor in his alleged flight.  It is understandable that the Tribunal might have overlooked that these circumstances and the Tribunal’s own findings raised the possibility that the applicant’s fear could be characterised in the way suggested above, and that that possibility needed to be dealt with.  However that does not mean that the Tribunal discharged its burden of considering the entire case. 

18                  It hardly needs to be said that a claim that a putative refugee would feel driven actively to support a political standpoint, and would be persecuted by the very denial of this by a regime practising severe political repression, need not be implied in every complaint based on feared persecution for reasons of political opinion.  My decision in Cho v Minister for Immigration & Multicultural Affairs [1998] FCA 1663 (see typescript p 6) and Lindgren J’s decision in Oo v Minister for Immigration & Multicultural Affairs [2001] FCA 348 are instances where such a claim was held not to have been raised before the Tribunal.

Disposition

19                  For the reasons given, the application for review will be allowed.  The Tribunal’s decision will be set aside and the matter will be remitted to the Tribunal for determination according to law.  The respondent is to pay the applicant’s costs.

Associate:

Dated:              4 May 2001