FEDERAL COURT OF AUSTRALIA

NAOI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 383

MIGRATION - protection visa application - appeal from decision of Federal Magistrate affirming Refugee Review Tribunal decision - fear of persecution for political opinion and religion - reasonableness of relocation within country of origin - adequacy of information put by the RRT member - no suggestion that appellant would have lead evidence to the contrary - procedural fairness - no evidence - country information - open to the RRT to make its findings - assessment of claim on cumulative basis - nature of persecution - "harm" - "serious harm" - appeal dismissed.

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 referred to

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 cited

NAOI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 2554 of 2003

TAMBERLIN J

SYDNEY

7 APRIL 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of a Federal Court Magistrate (“the Magistrate”), given on 10 December 2003, dismissing an application for review by that Court of a decision of the Refugee Review Tribunal (“the RRT”), which in turn refused an application to set aside a decision of a Ministerial delegate which refused the appellant a protection visa.

background facts

2                     The appellant is a citizen of Bangladesh.  He claims to fear persecution in Bangladesh by reason of political opinion arising from his support for the Awami League in his local region of Comilla, which on the evidence is about fifty kilometres from Dhaka, the capital of Bangladesh.  He also claims to fear persecution because of his Hindu religion, and his support for a religious human rights organisation known as the Bangladesh Hindu and Buddhist Christian Unity Council (“BHBCUC”).  The appellant also refers to work he has done for a non-government organisation raising awareness of HIV/Aids.  He claims to fear persecution from supporters of the Bangladesh Nationalist Party (“BNP”) and an Islamic Fundamentalist Party.

findings and reasons of the rrt

3                     The RRT accepted that the appellant had been a local member and activist in the Awami League.  It accepted that his family suffered during the liberation war.  However, it found that it was reasonable in the circumstances, having regard to the appellant’s claimed fear of local BNP opponents after their election victory, for the appellant to relocate to Dhaka.  The RRT noted that Dhaka is a major urban centre, and that the appellant could distance himself there from those who might have wished to harm him in Comilla.  In evidence before me, the indication was that Dhaka has a population in the order of nine million people.  The RRT did not accept that the appellant’s political opponents would pursue him once he left his local district.  In so doing, it took into account the fact that the appellant had been absent from Bangladesh for sixteen months at the time of the RRT hearing.  The RRT also took into account, in considering the feasibility of relocation, the appellant’s high level of education as a university graduate, and the fact that his occupational skills were well suited to work in a large urban settings such as Dhaka and to enable him to adjust, in general terms, to that sort of environment.  The RRT found that there was no real chance that the appellant would be seriously harmed in Bangladesh, the foreseeable future, for his political opinion.  The reasoning of the RRT indicates that the member was conscious of the principles stated by the Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 443 per Black CJ.

4                     The RRT found that the evidence before it indicated that the attacks by Muslim fundamentalists, which it found to have occurred were in general, on prominent Hindus, or in the nature of random attacks.  The RRT accepted that on the whole the appellant might feel that his position as a joint secretary of the BHBCUC in Comilla may well have made him a prominent Hindu in his local district, and that he may well have felt isolated and harassed in that rural area where he lived.  However, it found that his fears would not have any basis if he relocated to Dhaka, where he could, in the view of the RRT, avoid the harm that he might be exposed to in the district where he had been living.  The RRT did not accept that the appellant’s former local positions in Comilla would make him a “prominent” Hindu who might become a target of Muslim fundamentalists in the large urban conglomerate of Dhaka. 

5                     The RRT also considered a claim by the appellant that false charges had been made against him.  However, having regard to the fact that he was able to depart the country legally, the RRT did not accept that this claim was genuine.  In this regard, it also noted the lack of specific details in his evidence as to the “false cases”, and what exactly they were supposed to contain, and why he was supposed to have been targeted.

Reasoning of the magistrate

6                     On appeal to the Federal Magistrates Court, the learned Magistrate was not persuaded that the RRT had committed any jurisdictional error.  He stated that he had not limited himself to the grounds and arguments advanced by the appellant, and that he had examined the material in order to see whether there was anything which might indicate jurisdictional error.  He found none.

REASONING ON APPEAL

7                     On appeal, the appellant raised the issue of procedural unfairness.  In this respect, his case is that his advisers were not informed by the RRT member, prior to the RRT decision, that the RRT contemplated making a finding that the evidence before it indicated that attacks on him by Muslim fundamentalists were only on prominent Hindus or were in the nature of random attacks.  He says that if reliance was going to be placed to this effect on country information, which is information from sources other than the appellant, then he ought to have been informed of the specific country information to be used against him and given an opportunity to respond to it.  In fact, he submits that he was not given an opportunity to contest these conclusions at any time prior to the RRT decision. 

8                     In support of his case, the appellant filed, without objection, an affidavit annexing the transcript of the proceedings before the RRT, and also an affidavit in which he deposed to what he would have done if the RRT had clearly signalled to him that it had independent country information in its possession, to the above effect, and that it was going to use this information to make a finding as to prominence of the Hindu victims or the random nature of the attacks.

9                     In relation to the finding that the attacks by Muslims were generally on prominent Hindus, the respondent refers to a statement by the RRT member during the RRT hearing to a witness called for the appellant.  The appellant was present with his adviser at the time.  The statement was:

“… the question I am presented with is whether someone with the profile of the applicant, which I am accepting is that he was a vice president of the Buddha Christian Oika Prassard in ’94 and subsequently till ’98 and that he was involved in campaigning for the Awami League, whether for example if a person like that relocated say, to Dhaka whether there would be any danger for him.  That’s the sort of issue I have to think about.”  (Emphasis added)

10                  This question, on a fair reading, indicates that the RRT member specifically raised, and was concerned about, the question of the appellant’s profile, or his alleged prominence, when considering the possibility of his relocation to Dhaka, and that both the appellant and his adviser were given an opportunity to address the question, had they wished to do so.  However, there was no application on the appellant’s behalf to call the appellant to deal with this issue, or to seek an adjournment to enable him to gather further material to meet this point. 

11                  It is to be noted that the appellant made his claim on the basis that he held a certain position in the Awami League, and that this gave rise to his fear of persecution.  The RRT did not accept the claim that he would have maintained such a profile outside Comilla, or more specifically, in Dhaka.  The appellant had advanced a case based on the consideration that a significant profile was an important aspect of his fear of persecution, and that he had such a profile.  In my view, the questions of the RRT member, coupled with the way the appellant presented his case, sufficiently raised with the appellant the question of his profile so as to enable him to properly address the question as to his prominence and likelihood of persecution if relocated to Dhaka.  There was no lack of opportunity to address the relevant question.

12                  Furthermore, some of the general country information before the RRT, as referred to in its decision, indicates that a number of prominent Hindus had been killed, including the principal of a college, two professors, a monk and a Hindu priest.  Accordingly, there was some evidence on which it was open to the RRT member to form the view that it was generally prominent Hindus and participants in the Awami League who were at risk, and that if relocated to Dhaka, the appellant’s local Comilla prominence would be insignificant in the context of that much larger centre of population.

13                  As to the finding regarding the random nature of the persecution, which it is said was not put to the appellant, the transcript indicates that the decision-maker stated that he had not in his research been able to find that there was a “systematic” persecution of Hindus, although he could imagine that Hindus were not happy with the government and quite fearful.  The decision-maker asked the appellant why, if it were accepted that it was dangerous for him to return to Comilla, he could not live in Dhaka instead.  This concern was not answered to the satisfaction of the RRT member.  In my view, the raising by the RRT member of his concern with the appellant’s case that he had not been able to find that there was a “systematic” persecution of Hindus was sufficient to alert the appellant to the fact that the RRT member placed importance on the view that the persecution was not “systematic” (i.e. was random), and that this issue needed to be addressed.  It is true that the expression “systematic” has been given a particular gloss in the authorities.  However, it is an ordinary English word which primarily conveys the notion of a non-random activity.

14                  In addition, it is not necessary for the decision-maker to put all relevant country information to an applicant, which might be considered to weigh against an applicant’s case in the final outcome.  The position may well be different in circumstances where the information relied on is specific, or directed to the applicant particularly, or to a class of which he or she is a member.  In the present case, the country information is not of such a specific nature.  The question as to whether the material supports the conclusion reached is a matter of reasoning and evaluation for the RRT member, and is not a question for reconsideration by this Court.  Nor is it a matter of which the appellant needed to be forewarned in order to adequately present is case.

15                  Similar reasoning applies in relation to the RRT’s conclusions from country information as to whether there have or not have not been attacks on BHBCUC leaders and activists.  There is no suggestion that the appellant could or would have led evidence to the contrary: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [37].  Moreover, this determination cannot be said to have affected the final decision of the RRT.

16                  My conclusion is that the issues of the random nature of the persecution and the prominence or profile of the appellant, particularly in relation to the RRT’s finding about the possibility of relocation in Dhaka, were sufficiently raised with the appellant.  There was no denial of procedural fairness.  The appellant had a full opportunity to deal with the nature and extent of his profile in Bangladesh and the dangers which it might present.  He had the opportunity to make submissions with respect to the concerns the RRT member had as to the non-systematic nature of the persecution, which the member raised directly with the appellant, and with the witness in the presence of the appellant.

17                  The second principal submission for the appellant is that there was no evidence on which a finding could be made that the attacks were only made on prominent Hindus or were only random attacks.

18                  The RRT relied on extensive country information in reaching its conclusion.  I am not satisfied that it was not open, on this material to the RRT, to form the conclusions now challenged by the appellant.

19                  In relation to the question of relocation, it is first said that the RRT failed to put to the appellant that relocation might form the basis for the rejection.  There is no substance in this particular, because the question of his relocation was squarely raised in the course of the hearing when the RRT member made the observations about the profile of the appellant and the ability of the appellant to adjust to the larger city environment.  In addition, the RRT made a specific finding as to the unlikelihood of pursuit by feared attackers in the larger urban centre of Dhaka, as contrasted with the appellant’s situation in the smaller centre of Comilla, given whatever prominence he might have had there.  This was clearly signalled.  The passage of time also tended to reduce any possible risk, and this was taken into account.

20                  The RRT specifically addressed the question of the position of the appellant as an individual.  This was demonstrated in the language of its findings and conclusions, and also in the transcript when the member indicated that the question was whether this particular appellant could have reasonably entertained a fear of persecution if relocated in Dhaka.  At this point the RRT was not making any generalised findings regarding the position of the appellant as a member of a class, but was directing its attention specifically to the alleged position of the appellant.  There is no indication in the material that relocation was not a reasonable and practicable alternative in all the circumstances. 

21                  The third submission is that the RRT did not assess the appellant’s claim on a cumulative basis but purely on a seriatim basis as a series of discrete claims.  In my view, there is no substance in this submission.  Firstly, it is hard to see how, if it is found that there is no substance in any of the individual claims, there could be any higher alternative claim based on a cumulative series of negative findings.  Secondly, on a fair reading of the reasons for decision, it is clear that the RRT had regard to the totality of the evidence before it, including the appellant’s sixteen months’ absence from Bangladesh, his education, his ability to adjust to conditions in Dhaka, and independent country information.

22                  Finally, it is submitted that the RRT erred in its consideration of the nature of the persecution, and restricted itself only to physical injury and not other forms of harassment.  Although the RRT reasons refer to the expression “harm” and to “suffering harm”, I do not consider that the RRT member wrongly restricted his consideration to purely physical harm.  The RRT, after accepting that the appellant might well have felt isolated, vulnerable and harassed in the rural area where he lived, went on to say that it did not accept that he would suffer serious harm in what were found to be isolated and unsystematic attacks on Hindus.  At the outset of the decision in the template as to the applicable principles, the RRT member has referred to the expression “serious harm” as including a threat to life or liberty, significant physical harassment or ill treatment, or significant economic hardship, or denial of access to basic services or denial of capacity to earn a livelihood.  There is no reason to believe that later in the decision the member overlooked and departed from this understanding when he used the expressions “harm” and “serious harm”.  I infer from the use of the term “harm” and “serious harm” in the findings and reasons of the RRT that it is this broader concept of “harm” which is being referred to.  Accordingly, there is no wrongful restriction of the concept of persecution of purely physical harm.

23                  For the above reasons, I consider that this appeal should be dismissed with costs.

24                  I would like to express my appreciation for the assistance obtained in this matter from both Counsel, particularly Mr Ian Archibald, who appeared for the appellant.  His submissions were conducive to a clearer and more articulate presentation of the appellant’s position than might otherwise have been the case.

Associate:

Dated:              7 April 2004