FEDERAL COURT OF AUSTRALIA

SZAIZ v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 954

MIGRATION – claimed extortion on basis of religion – Refugee Review Tribunal (RRT) dismissed claim as extortion not motivated by religion – RRT also found that Hindus in Bangladesh are not a persecuted group – whether RRT failed to take account of relevant information – whether findings open to RRT – whether bias demonstrated – no jurisdictional error demonstrated – appeal dismissed

Judiciary Act 1903 (Cth) s 39B

Federal Court of Australia Act 1976 (Cth) s 25(1A)

Kordan Pty Ltd v Commissioner of Taxation 2000 ATC 4812 referred to

SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 referred to

SZAIZ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 107 OF 2004

HELY J

26 JULY 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The application 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 OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of Raphael FM delivered on 23 January 2004, in which his Honour dismissed an application for relief under s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal (‘the RRT’) made on 20 November 2002.  The RRT affirmed a decision of a delegate of the respondent not to grant a protection visa to the appellant.  By direction of the Chief Justice made pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the appellate jurisdiction of the Court in relation to the appeal is to be exercised by a single judge.

2                     The appellant is a citizen of Bangladesh.  He is a Hindu.  He worked as a shopkeeper in Chittagong in Bangladesh, and he claimed that prior to his departure from Bangladesh in the middle of 1999 he was targeted by fundamentalist Muslims because of his religion.  False charges were brought against him and he had been the subject of serious and successful attempts at extortion.  He claimed that he had been beaten up when he declined to pay some extortion money, that he was unsuccessful in going to the police about the matter, and that because he felt his life was in danger he left Bangladesh for Australia.  He arrived here on 25 July 1999.

3                     Three issues arise on the hearing of the appeal to this Court:

            (a)        the appellant made a claim in relation to suffering extortion and associated threats.  The RRT rejected this claim.  The appellant says the RRT fell into jurisdictional error in rejecting this claim.  (The ‘extortion issue’);

            (b)        the appellant made a claim in relation to the general situation of Hindus in Bangladesh.  The RRT rejected this claim.  The appellant says that the RRT fell into jurisdictional error in rejecting the claim.  (The ‘Hindus in Bangladesh issue’); and

            (c)        the Tribunal found that, in any event, the appellant could relocate to Dhaka.  The appellant says the RRT fell into jurisdictional error in making this finding.  (The ‘relocation issue’).

The extortion issue

4                     The appellant claimed that on a number of occasions between 1992 and 1999 while he was living in Chittagong, Muslim extremists sought to extort money from him, and that in connection with an extortion incident in 1999 he was badly beaten up.

5                     The RRT did not reject the appellant’s claim that he suffered extortion.  The RRT dealt with this claim in the following way:

‘The Applicant’s evidence was that at the time he left Bangladesh in 1999 local groups which had over the years sought to extort money from himself and his family were (although they allegedly involved Muslim extremists) primarily engaged in criminal activities in his area and were instigated by local (Muslim) business rivals who were jealous of his successful business.  Consistent with this, the adviser’s post-hearing submission stated that the Applicant believes that he was targeted “because he was a young successful Hindu businessman” and that because the Applicant had now spent some time out of Bangladesh, there will be an assumption on the part of those involved “that he is in a more solid financial situation to respond to their threats”.  The evidence does not suggest that Muslim businessmen are immune from local extortion and it appears that the Applicant was distinguished from his fellows in the eyes of those targeting him not primarily by his religion but by his perceived ability to respond to demands for money.  Considered in the context of the general country information about the level of crime and extortion in Bangladesh (affecting all communities and not just Hindus), the Tribunal is satisfied that the specific difficulties complained of by the Applicant, amounting to extortion accompanied by threats, were not essentially and significantly motivated by the Applicant’s religion but were rather opportunistically motivated by of his perceived ability to pay the hostility of local business rivals.’

6                     The appellant makes two complaints about this passage:

            (a)        there was no evidence before the RRT that between 1992 and 1999 Muslim businessmen were immune from local extortion; and

            (b)        the RRT assessed the persecutors’ motives for extortion on the basis of country information for the period between 2001 and 2002 instead of considering information for the period 1992 to 1999.

7                     The contention that the RRT relied on country information for the period between 2001 and 2002 is based on the use by the RRT of the present tense in passages of its reasons for decision.  Thus the RRT says: ‘the evidence does not suggest that Muslim businessmen are immune from local extortion’ (emphasis added) and the RRT based its decision on ‘general information about the level of crime and extortion in Bangladesh’, and the RRT had already said that country reports indicated ‘that there is a high crime rate and related problems in Bangladesh and that it is by no means just Hindus who face robbery, kidnapping and extortion’ (emphasis added).

8                     There was material before the RRT which indicated that extortion and violence had been a problem in Bangladesh since at least 1992, as towards the end of that year, a new law, entitled ‘The Suppression of Terroristic Offences Bill’ provided for the creation of special tribunals to try various offences within specified and compressed time frames.  The list of offences include: ‘extortion, destruction of property, hijacking, abduction and ‘creating anarchy’’.  The US Department of State Country Report on Bangladesh released on 4 March 2002 includes this statement:

‘Extortion from businesses and individuals by persons with political backing was common, and businessmen on several occasions went on strikes to protest the extortion.’

There is nothing in the Report to suggest that it was only Hindus who were the victims of extortion, nor is there anything to indicate that this was a problem which emerged for the first time in 2001.  Other information before the RRT indicated that extortion was an activity engaged in by students, by political activists, as well as by trade unions.  Criminal violence appears to have been rampant in Bangladesh such that a Department of Foreign Affairs & Trade (‘DFAT’) report dated 10 January 2002 reported:

‘There were reports of widespread mugging, extortion, theft, robbery, murders and political violence, despite the new government’s claim to give top priority to improving law and order.’

9                     The RRT accepted country information that suggested that extortion and criminal violence was common in Bangladesh, and perpetrated against the population generally, regardless of religion.  That country information, together with the absence of any positive evidence that Muslim businessmen enjoyed immunity from local extortion, was sufficient to permit the RRT to draw the inference which it did.  Complaint (a) is therefore not made out.

10                  Whilst it is true that the RRT relied upon country information from reports published in 2001 and 2002, that information was not confined to events occurring in those years.  The RRT was entitled to rely upon its own general knowledge of the situation in Bangladesh in the period in question.  Complaint (b) is thus not made out.  Raphael FM correctly concluded that it cannot be said that the RRT relied solely on evidence about extortion that post dated the events in question.

11                  The RRT also held:

‘Nor does it appear from the Applicant’s evidence at hearing that the protection of the police was sought and withheld in relation to this extortion or associated assault.’

12                  The appellant contends that if this is meant to be a finding that the appellant failed to avail himself of the protection of the State, the finding is inadequate on the basis that there is no finding that the State could offer the appellant effective protection.  However, having found that the extortion to which the appellant was subjected was not for a Convention reason, it was not necessary for the RRT to go on and consider the issue of State protection in relation to the extortion claim.  Any deficiency in the RRT’s reasons on this issue therefore is not capable, even if made out, of being material.

Hindus in Bangladesh issue

13                  The appellant’s advisers submitted to the RRT reports of anti-Hindu communal violence in Bangladesh following the 1October 2001 general election, when the BNP was returned to power.  Hindus are generally perceived as supporters of the Awami League, which was defeated at that election.  The appellant claimed that following the October 2001 election, the Bangladeshi Government was controlled by Islamic fundamentalists who had launched a continuing attack on the Hindu community which caused Hindus to be ‘denied basic human rights and the freedom to live as human beings’.  In response to further questioning by the RRT, the appellant said ‘Hindus did not have much protection by the authorities if anything happened; if they made reports nothing practical happened’.

14                  The RRT considered the evidence before it about the general situations of Hindus in Bangladesh.  It quoted from country information which suggested that relations between Hindus and Muslims have been by and large peaceful and that discrimination against Hindus and other religious minorities is neither widespread, nor is it a result of any systematic campaign of persecution.  Following the October 2001 election the President of Bangladesh, following an increase of reports in the Bangladesh media of attacks on Hindus following the election, stated that the government would take necessary steps to ensure the safety of minorities.

15                  After considering other country information, the RRT expressed its conclusions as follows:

‘The Tribunal is satisfied that (notwithstanding sweeping assertions in some of the material submitted [by the appellant]), the serious disturbances targeting Hindus were limited to a period of some weeks immediately following the elections of October 2001 and generally to some particular (rural) localities, although the Tribunal does not exclude that in some specific remote places there may be ongoing problems.  Having considered the material before it, the Tribunal does not accept that as a matter of fact Bangladesh is now dominated by Islamic fundamentalists or that they are in power or that there is an ongoing violent pogrom against Hindus.’

(emphasis added)

16                  The appellant complains that there was country information before the RRT which suggested that widespread atrocities had been committed by Muslim radicals against Hindus and that this situation was not confined to a period of some weeks immediately following the elections in October 2001, but continued thereafter.  In the appellant’s submissions the RRT failed to take this material into account.

17                  There are at least two problems with this submission.  The first is that although there was country information which might have suggested continuing hostility towards Hindus post 2001, there was also country information to support the RRT’s conclusion.  The supportive information included DFAT cable CX61291 of 10 January 2002 which recorded the following:

‘Since the October first elections, Bangladeshi newspapers have reported claims of violence and intimidation against minority groups, especially Hindus and Christians, allegedly perpetrated by BNP/Alliance supporters.

Several western missions in Dhaka including Australians have also received written complaints of harassment from certain minority groups.  We have sought to verify some of these reports, including by making trips outside Dhaka.  We discovered that press reporting of the specific allegedly “anti-Hindu” incident we were investigating was seriously exaggerated.

Local officials have told us they have clear instructions from the new government (from the PM down) to maintain peace and communal harmony.  We have been told that the local authorities would not hesitate to move against BNP or Alliance activists, if they were suspected of criminal activity or of inciting communal violence.

The Home Minister has claimed that many of the reports of violence against Hindus have been fabricated by opposition figures.  The Foreign Minister has also publicly refuted the claims of Hindu groups.  It is very hard to verify the veracity of all the claims made.  Our assessment, however, is that whilst some instances of aggression may have occurred, there is no concerted campaign of intimidation or violence against Hindu or any other minority group in Bangladesh resulting from the change of government in October last year.’

18                  The second problem is that the RRT made it clear, by the words in parenthesis which have been emphasised above, that it had taken into account country information which might have suggested continuing hostility towards Hindus post 2001, but that it did not accept that information.  It was a matter for the RRT to assess what weight it was prepared to give to conflicting pieces of information, particularly as the DFAT cable suggested that newspaper reports were inaccurate.

19                  The appellant accuses the RRT of selective quotation, and of tendency to refer to and rely upon more dated material, ignoring the more recent material.  It was suggested that this ‘might support’ an inference that the RRT did not approach its task in good faith.  An allegation of lack of good faith is a serious allegation which is associated with dishonesty or with action which is in some way contrived or colourable; and is not to be made lightly: see SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 at [19]; Kordan Pty Ltd v Commissioner of Taxation 2000 ATC 4812 at 4815.

20                  As I have already indicated, it seems to me that the RRT considered and rejected country information which suggested a conclusion to the contrary of the conclusion which the RRT reached.  It was entitled to do so.  The fact that it did so does not establish that it acted in bad faith.

21                  The second complaint is that in the passage quoted above the RRT did not fully respond to the appellant’s claims, and, in particular, failed to consider the ‘question as to whether the authorities are unable or unwilling to control attacks by Islamic fundamentalists on Hindus’.

22                  However, putting the matter in that way presupposes that there are attacks by Islamic fundamentalists on Hindus because of their religion, a proposition which the RRT did not accept, except possibly in relation to the period immediately following the elections in October 2001.  The RRT’s findings were responsive to the appellant’s case, and its analysis, when read fairly, was that Hindus do not per se have a well-founded fear of persecution in Bangladesh.

The relocation issue

23                  The RRT found that even if the appellant faced difficulties in Chittagong, it would be reasonably open to him to relocate to another large city, such as Dhaka, where he is not known and where such difficulties do not arise in the same way.  The respondent accepts that if the RRT erred in relation to the ‘Hindus in Bangladesh issue’, the relocation finding would not sustain the decision.  However, the respondent submits that if the RRT erred in relying upon evidence from 2001 and 2002 in respect of whether the appellant would have a well-founded fear of persecution by reason of extortion, then the relocation finding would support the decision.

24                  The RRT said:

‘Although various extremist organisations may exist in Dhaka as elsewhere, the Tribunal is not satisfied that the particular persons operating in Chittagong and to whom the applicant is known and who have opportunistically targeted him in relation to his business activities and his perceived financial position (whether or not they are members of particular organisations also present elsewhere) would now search for the Applicant to identify and target him in another city of several million people.’

25                  I do not see this as being a relocation issue in the traditional sense.  The proposition for which the respondent contends is that even if the RRT wrongly assessed the appellant’s claims of victimisation in the period up to 1999, by reference to evidence as to the position in 2001 and 2002, that evidence indicated that whatever may have been the position in the past, Hindus were no longer at risk of persecution by reason of their religion.

26                  In my view, if the RRT made a jurisdictional error in its assessment of the appellant’s claims (which, on my findings, it did not), it cannot safely be assumed that it’s decision would necessarily have been the same even if it had not made that error.  However, given what I have said above, this conclusion cannot avail the appellant.

Conclusion

27                  The application should be dismissed with costs.

Associate:

Dated:              26 July 2004