FEDERAL COURT OF AUSTRALIA

SZBJP v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 390

MIGRATION – whether failure to consider relocation issue properly – whether failure to consider applicant’s claims – where no review based on merit.

Migration Act 1966 (Cth) s 91R

Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1014 referred to

SZBJP V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 23 OF 2004

BEAUMONT J

5 APRIL 2004

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed, with costs.

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

REASONS FOR JUDGMENT

Beaumont J:

Introduction

1                     The appellant, who claims to be a national of Bangladesh, arrived, unlawfully, in Australia about November 2001.  Upon detention in May 2003, he lodged an application for a protection visa, claiming that he faced persecution in Bangladesh over his Christian faith, having (allegedly) converted from Islam.  The Minister’s delegate refused that application.  Upon a review application, the Refugee Review Tribunal (‘the Tribunal’) affirmed the Minister’s decision.  The appellant then sought judicial review from the Federal Magistrates Court of Australia, which dismissed that application.  This is an appeal from that judgment.

2                     In order to understand the issues arising in the appeal, it will be necessary to describe the process of reasoning adopted by the Tribunal.

The Tribunal’s DECISION

3                     The Tribunal structured its reasoning into three basic levels:  (1)  Claims and evidence;  (2)  Findings and reasons;  (3)  Conclusion.  (As will be seen, in dealing with (1), some (preliminary) conclusions were expressed.)

(1)        The appellant’s claims and evidence

4                     The Tribunal noted that the appellant gave oral evidence to it, and provided a written submission after that hearing.

5                     The Tribunal then proceeded to summarise its understanding of the appellant’s case, as follows:

6                     The appellant claimed that he came from a conservative Muslim family, but through working for a Christian non-governmental organisation (‘NGO’), he became attracted by the Christian faith and later (in mid 2000) decided to convert under the aegis of missionaries.

7                     (The Tribunal then added:  ‘At the hearing, the [appellant] was vague as to [his] ... denomination of Christianity ... and whether he had been baptised’.)

8                     The appellant claimed that he had changed his name to a Western-sounding one, so as to reflect his conversion.  He attended weekly services at the Easkaton Anglican Church in Dhaka.  He used to travel around quite a lot on the NGO’s business, and hence had lived in many places (some of which he named).

9                     (The Tribunal added:  ‘The [appellant] was evasive when asked where his usual place of residence had been’.)

10                  The appellant claimed that his family had disowned him for turning Christian.  He also ‘faced harm from Bangladeshis in general who ... were fundamentalists and were intolerant of those who forsook the Muslim faith’.  He had been ‘beaten’ by members of the fundamentalist party, Jama’at Islami, ‘over his new faith’, yet the police ‘had not taken any notice’.

11                  When asked why he could not relocate to another part of Bangladesh, the appellant said that ‘when a major group turned against [him] ... [i.e. Jama’at Islami and other fundamentalist groups] there was no safety to be obtained in Bangladesh.’

12                  (The Tribunal added that it was put to the appellant that ‘these [fundamentalist] groups were very small’ and with his ‘lack of profile he could easily have relocated internally with safety’.)

13                  The appellant claimed that, ‘wherever he went’, people would learn of his conversion and he would be ‘harmed’ or ‘face severe discrimination’. 

14                  (The Tribunal noted that it put to the appellant that independent evidence did not support a claim that Christians (or converts) suffered discrimination in the manner alleged.)

15                  The appellant said that he had escaped from Bangladesh overland into Burma, then to Thailand, Malaysia and Indonesia and then to Australia.

16                  (The Tribunal asked the appellant why he had not applied for a passport, that is, leaving ‘by more straight forward means’ (since it was easy to obtain a Bangladesh passport).)

17                  The appellant claimed that he had not been ‘thinking clearly’ at the time because of ‘religious riots’ and his ‘personal circumstances’.

18                  (The Tribunal put to the appellant that Bangladeshis ‘in general’ practised a ‘moderate’ form of Islam;  that Jama’at and other fundamentalist groups had little influence;  that Christianity was ‘safely’ practised;  and that the Prime Minister had stated that, notwithstanding Jama’at’s membership of the governing coalition, Jama’at’s ‘aim’ of an Islamic State was not ‘espoused’ by the Government.)

19                  The appellant replied that the Government was being ‘dishonest’.

20                  The appellant further claimed that the Prime Minister had ‘closed down’ two hundred NGOs saying that most of them had been engaged in ‘missionary work’.

21                  (The Tribunal put to the appellant ‘independent’ evidence on the operation of the NGOs that was ‘at odds’ with his ‘black picture’, but the appellant ‘maintained his argument’.)

(2)               The Tribunal’s findings and reasons

22                  The Tribunal found that while Bangladesh is ‘overwhelmingly’ Muslim (88 per cent), Christians (who with Buddhists) form approximately two per cent of the population, practise their faith ‘without significant problems’ adding that the ‘tiny’ size of the Christian population puts its members ‘at a disadvantage’ beside the Muslim majority, but there was ‘no evidence that Christians suffer significant discrimination in employment or other ways’.

23                  The Tribunal found that ‘violence’ against Christians is ‘rare’ and is ‘not condoned by the authorities’;  that there was ‘no evidence’ that the presence of fundamentalist parties such as Jama’at Islami in the ruling (coalition) Government had led to ‘state-sanctioned discrimination’ against Christians, or to a ‘surge of violence’ directed at that community, ‘despite a reported increasing perception by minority groups of an increase in discrimination by Muslims’;  that report was ‘broadly based’ on the reaction of Hindus (not Christians) to a ‘small wave’ of attacks against them immediately after the October 2001 election, and (perhaps) to a ‘level of mutual mistrust’ between Christians and Muslims in the ‘wake’ of the terrorist bombings in New York in September 2001, a ‘worldwide phenomenon’ which ‘saw no discernible rise in violence’ against Christians in Bangladesh’;  and that the claims of violence against minority groups at the time of the 2001 election ‘seem[ ] to have been against Hindus, not Christians – and even in that case, both the US State Department and DFAT [Department of Foreign Affairs and Trade] say, the claims of violence were grossly exaggerated’.

24                  The Tribunal found support for these findings in ‘illustrative’ extracts from a range of sources and periods (then specified).

25                  The Tribunal observed that ‘political experts’ have noted that the chances of fundamentalists holding ‘great political sway’ are ‘remote’;  and that there are ‘plenty of influential people’ in the Bangladesh National Party (‘BNP’) who ‘oppose Jama’at and its policies’.

26                  The Tribunal said that ‘independent’ evidence showed that the BNP Government is ‘willing and able to confront thuggery by fundamentalist parties’;  and that the Prime Minister had come out ‘strongly against political, criminal and other violence ...’.

27                  Referring to an article submitted by the appellant’s adviser (on the ‘rise of Islamic extremism in Bangladesh’) the Tribunal, found its claims to be ‘overblown’, and stated (of the ‘surge in Islamic sentiment in Islamic countries in the wake of the US invasions of Afghanistan and Iraq):

‘That surge has exposed and galvanised a few radical Islamic elements in Bangladesh, but ... on the totality of the independent evidence [the Tribunal is not satisfied] that this has resulted or would result in the persecution of Christians ... in the foreseeable future.’

28                  The Tribunal found that the appellant’s conversion decision ‘would have caused distress’ within his family and ‘perhaps a degree of contempt’ and ostracism from his family and immediate community;  but that the appellant could ‘avoid these social problems’ by relocation.  The Tribunal referred to his education and intelligence in this connection, together with ‘particular assistance’ of fellow Christians.

29                  The Tribunal said:

‘The [appellant] has claimed that internal relocation is not a viable option because the alleged religious violence against him would be state-sanctioned, because Jama’at and other fundamentalist parties operate nationally, and because Bangladeshis generally are intolerant fundamentalists who would attack him when hearing of his conversion.  I accept that Jama’at and other fundamentalist parties operate nationally, but I am not satisfied that there is credibility in his other claims since independent evidence (given above) does not support them:  Bangladeshis are very largely moderate Muslims and anti-Christian violence is not condoned by the State.

Furthermore, while I accept that converts from Islam face some societal displeasure, independent evidence does not show that they face a real chance of being attacked or that they face significant discrimination.  The sources of independent evidence that are cited above on Christianity in Bangladesh do not support claims of persecution of converts.’

30                  Noting the lack of verified independent evidence that Jama’at and other fundamentalists harm converts, the Tribunal was not satisfied that the appellant ‘had been harmed in the past ... [or] that he faces a real chance of harm in the future’.  The Tribunal considered this claim, and the ‘attendant’ claim of police ‘inaction’ over the ‘alleged assault/s’ to have been ‘fabricated’ by the appellant to ‘boost’ his application.

(3)               The Tribunal’s conclusion

31                  Having earlier noted that, under s 91R(1) of the Migration Act 1966 (Cth) (‘the Act’), persecution must involve ‘serious harm’ to the appellant and ‘systematic and discriminatory conduct’, the Tribunal concluded that the appellant had no well-founded fear of persecution, so that Australia did not have protection obligations.

The decision of the FeDeral Magistrates Court

32                  The Magistrates Court first considered a submission that the Tribunal had erred by accepting, by implication, that the appellant would suffer what must be taken to amount to persecution in his immediate family and community, but had not taken into account relevant available evidence in finding that the appellant could locate within Bangladesh;  so that, it was said, the Tribunal failed to exercise jurisdiction by not properly considering all available relevant evidence, particularly on the issue of relocation.  It was submitted that the only relevant information was that which applied to Christian converts;  and, relying on the reasonableness aspect of relocation, it was contended that there was no evidence as to the situation of a convert living and working in an urban situation.

33                  The Court rejected the appellant’s submission, holding that it was not ‘clearly implicit’ (cf. Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1014) from the Tribunal’s reference to the relocation question, that, in respect of some part of Bangladesh, the appellant had a fear of persecution which was well-founded.  The Court noted that the Tribunal did consider whether the appellant could, by relocating, ‘avoid family and community displeasure’, but the Tribunal did not find that such ‘ostracism’ amounted to persecution (the Court cited s 91R in this connection).  The Court further noted, in this connection, that the appellant had been ‘evasive’ in nominating his usual place of residence.

34                  The Court said (at [29] – [30]):

’29.      The findings in relation to relocation merely provided an alternative basis for the Tribunal’s conclusion that the [appellant] did not have a well-founded fear of persecution for a Convention reason.  Hence, if the Tribunal had erred by not taking into account the matters raised in the [appellant’s] submissions in its consideration of the reasonableness of relocation, it could not be said that this was an error “such that the Tribunal’s exercise or purported exercise of power was thereby affected” (see Craig v South Australia (1995) 184 CLR 163 at 179 and MIMA v Yusuf (2001) 180 ALR 1 at [82]) as consideration of relocation was not necessary for the Tribunal findings.

30.              In any event (and indeed even if it could be said that the Tribunal had impliedly found that the social problems the [appellant] could experience in his immediate community were sufficient to constitute persecution as contended by the [appellant]) the Tribunal properly considered, in accordance with Randhawa, whether it was reasonable for the [appellant] to relocate.  The Tribunal considered the evidence personal to the [appellant] and the practical realities of relocation.  It had regard to his age, his history of living away from home, earning an independent living in a variety of locations, his past resourceful behaviour, education and intelligence and the availability of assistance from fellow Christians.’

35                  Accordingly, as mentioned, the Magistrates Court dismissed the appellant’s application for judicial review.

THe appeal to this Court

36                  By his notice of appeal, the appellant propounds the following grounds of appeal:

(1)               The Tribunal failed to exercise jurisdiction by not properly considering all the available relevant evidence, particularly on the issue of relocation.

(2)               The Tribunal ignored the only relevant evidence available to it that converts from Islam were subject to different conditions and forces than those within the wider Christian community.

(3)               The Tribunal’s finding that Christians do not suffer significant discrimination in employment was not available on the evidence before the Tribunal (the only available evidence was that they did suffer discrimination).  (As will be seen, this ground was not pursued by the appellant’s written submissions.)  As will further be seen (below), in terms of the Convention and statutory ‘well-founded’ test, this claim could not be sustained.

37                  In his written submissions, the appellant added a fourth ground of appeal:

(4)            The Tribunal ‘misdirected itself when it appeared to rely on factual matters put to me in questions during the hearing’.

Conclusions of the appeal

38                  The appellant has filed a full written submission.  I will consider each paragraph of the submissions in turn.

Submission 1

‘The [Tribunal] ... considered whether my conversion - not simply my Christian beliefs – would cause me to be persecuted.  It concluded that it would have caused distress within my family and perhaps a degree of suspicion in my immediate community and that this could have led to varying degrees of ostracism from my family and immediate community.’

Consideration of submission 1

39                  This is an accurate statement of the Tribunal’s finding.

Submission 2

‘The [Tribunal] went on to say “I accept that he could have avoided these social problems by relocation to an area away from my family and former community” ... .  The [Tribunal] appeared by the above comments to accept that it was reasonable that I move away from my former immediate community. In doing so, by implication, the decision acknowledges that the distress and ostracism endured in my immediate community were such that they amounted to a well-founded fear such that I was reasonably unwilling to go back there.’

Consideration of submission 2

40                  The sentence cited from the Tribunal is correct, but the appellant has ignored its context.  In the preceding sentence, the Tribunal, after the passage cited in submission 1, said:

‘I am not satisfied that he faced greater harm than this.’

41                  That is to say, contrary to this submission, the Tribunal is there (and elsewhere) holding that there was no ‘well-founded fear’, not merely of the ‘ostracism’ mentioned, but of the kind prescribed by the Convention and the statute (s 91R).  (Factual questions of this kind are not, of course, susceptible to judicial review.)

Submission 3

‘The determination of what is persecution for the purpose of Article 1A(2) of the Refugees Convention and whether relocation is reasonable is two step process. (See Singh v Minister for Immigration and MulticulturalAffairs [2000] FCA 1014).  In this case, the [Tribunal] went on to consider whether relocation was reasonable and so, presumably, found that the distress caused to me in my immediate community amounted to persecution for the purposes of the Convention.’

Consideration of submission 3

42                  This is, in truth, no more than a restatement of submission 2.

Submission 4

‘The [Tribunal] did not at any point decide that the “distress and ostracism” suffered in the immediate community did not amount to persecution within the meaning of the Refugees Convention.’

Consideration of submission 4

43                  As a matter of law (that is, the operation of the Convention and the statute (s 91R)), ‘distress and ostracism’ are not, without more, within their scope.

Submission 5

‘The [Tribunal] did not accept that relocation was not a viable option ... .  I was found not to be credible when he alleged that religious violence against me would continue nationally.  The decision cites independent evidence to support this finding.  This submission does not question the [Tribunal’s] finding that I was lacking in credibility.  However, on finding I am version incredible, the [Tribunal] can not automatically find the contrary version unless there is evidence available to support that contrary version.  It is submitted that the [Tribunal’s] decision as to relocation ignores the same independent evidence it relied on in other respects.  In deciding that it was viable for me to relocate, the [Tribunal] relied on information that applied to the entire community of Christians, not justconverts.  The independent sources available to the [Tribunal] contain evidence that:

•          Religious minorities other than Hindus have been targeted ... ;

•          Local gang leaders sometimes attack religious minorities, perceiving them to be weak and vulnerable ...

•          Religious minorities are disadvantaged in practice in such areas as access to jobs in the government and military; ...

•          Local authorities and communities often object to efforts to convert persons from Islam to other religions ...

•          The government can fail to protect minority groups, contributing to an atmosphere of impunity ...

•          Strong social resistance to conversion from Islam means that most missionary efforts by Christian groups were aimed at serving communities that have been Christian for several generations or longer ...

•          Victims were sometimes lashed or shunned by their communities ...

•          The Government limited freedom of assembly, particularly for political opponents and on occasions limited freedom of movement. (Emphasis added)... ;

•          Societal discrimination against persons with disabilities, indigenous people and religious minorities was a problem ... .’

Consideration of submission 5

44                  Since this ground, in truth, seeks judicial review on the facts and on the merits, it is, as mentioned, not open here.

Submission 6

‘The RRT took into account the fact that I worked away from my family for some years and was independent.  In doing so, it failed to properly consider the evidence, which it apparently accepted, that I moved around Bangladesh working with the one Christian affiliated employer, that the friends who assisted my conversion had left the country and that, after my conversion, I was left alone and vulnerable.  The information available statethat there was an election in October2001 ... and that there were some changes in attitudes to religious minorities thereafter ... .  My employment was prior to that election.  The only evidence as to my prospects of relocation at the time of the [Tribunal] hearing is contained in the independent sources referred to in paragraph 5 immediately above.  On that evidence, and failing any evidence to the contrary, it is submitted that it would be unlikely that lone Christian convert from Islam with an Anglicised name would find any place of safe refuge[] – including accommodation and employment – within Bangladesh.  A lone Christian convert left by those who had originally supported me would on the available evidence seem to be one of the most vulnerable persons in the country.’

Consideration of submission 6

45                  Again, this contention seeks to re-agitate, impermissibly, the facts.

Submission 7

‘Generally, it is submitted that the information taken into account by the [Tribunal] as to discrimination against Christians was applied to the whole of that community within Bangladesh.  In entirety, Christians comprise only 2% of the population ... .  There is no evidence as to the proportion of those who are converts from Islam.  Clearly it would be [a] smaller group.  It is submitted that it is not appropriate for the [Tribunal] to apply information as to Christians generally, to the applicant when that same information indicates that my subgroup in the community (converts from Islam) face problems that are greater than and different from those faced by the majority of Christians.’

Consideration of submission 7

46                  There is no substance in this claim.  As has been seen, the Tribunal did consider the conversion aspect, but found no persecution here.

Submission 8

‘The application by the [Tribunal] of information relat[ing] to Christians, to [me is] ... a failure to properly apply its own finding that I am a convert from Islam.  Applying information as to Christians as a whole involves complete failure to consider the claims of me.  By way of comparison, take for example an allegation of discrimination in sport in Australia.  Assume that there is information that there is very little.  Applying the general information would constitute a failure to properly consider the claims of:

 •         A pregnant adult who want to play competition netball

•          Female rugby union players who want to play in a traditionally male competition, or

•          A disabled golfer who wants to use a buggy for transport when playing in a competition.

The claims of the above persons who may allege discrimination cannot be addressed by a statement to the effect that independent information shows that there is very little discrimination in sport in Australia.  The claims have to be looked at in terms of the category that my claims to be in.  I am not just a Christian but a convert from Islam.  So, the only relevant information that should be applied to me is that which describes conditions applying to that subgroup.’

Consideration of submission 8

47                  This is, again, an impermissible attempt to re-agitate the facts.

Submission 9

‘There is no information within the material as to where Christians in Bangladesh live and work.  There is some suggestion that the[y] predominantly live in communities,sometimes attached to missionaries.  There is no consideration of whether me could gain entry to such a community.  There is no consideration of whether me, as [a] convert from Islam, could gain employment.’

Consideration of submission 9

48                  These are factual issues.  There is no basis for suggesting that the Tribunal failed, even constructively, to exercise its jurisdiction.

Submission 10

‘Several times in the [Tribunal] report, these are the words “It was put to me” ... .  It is submitted that it appears from thereasons for decision that the [Tribunal] took the content of those questions into account.  In apparently doing so, the [Tribunal] has misdirected itself.  Although the rules of evidence [d]o not apply to the taking of evidence, the accepted way in which evidence is to be received [is] in the [form] of documents, oral evidence and the “country information” available.  The [Tribunal] is not entitled to rely on the content of questions put to me in cross-examination.  There is a perception that [Tribunal] relied in part on matters put to me in coming to its decision. It is submitted that it thereby fell into error and that this was a constructive failure to apply the proper law.’

Consideration of submission 10

49                  In the absence of any suggestion (and none is indicated) that the Tribunal misled the appellant at the hearing, there is no substance in this contention.

Orders

50                  It must follow that the appeal cannot succeed.  It will be ordered that the appeal is dismissed, with costs.

Associate:

Dated:              5 April 2004