FEDERAL COURT OF AUSTRALIA

Applicant S116/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 618

MIGRATION – protection visa – application for leave to appeal against decision of Federal Magistrate dismissing application for order nisi – whether Tribunal erred in assessing seriousness of harm – whether Tribunal applied wrong test under s 91R(1)(a) of Migration Act 1958 (Cth) in relation to essential and significant reason – whether Tribunal failed to consider claim that State was complicit in or condoned or tolerated harm – whether Tribunal’s decision infected by error due to statement in relation to avoidance of harm – leave to appeal not granted

NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 377 cited 

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited 

Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 cited

Minister for Immigration and Multicultural and Indigenous Affairs v Kord (2002) 125 FCR 68 cited 

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259 cited

W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 cited

SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 cited

Appellant S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 cited

Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 cited

APPLICANT S116/2003 v Minister for Immigration and Multicultural and Indigenous Affairs and REFUGEE REVIEW TRIBUNAL

NSD 108 OF 2006

YOUNG J

8 MAY 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.             The application be treated as an application for leave to appeal from the decision of Scarlett FM of 16 January 2006.

2.             The application for leave to appeal be dismissed.

3.             The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1                     This application arises from the judgment of Scarlett FM dated 16 January 2006 which dismissed an application for an order nisi in respect of a decision of the Refugee Review Tribunal (‘Tribunal’) handed down on 3 September 2002.  The Tribunal’s decision affirmed a decision of the first respondent’s delegate to refuse to grant the applicant a protection visa. 

2                     These circumstances raise an issue as to the nature of this application.  An order dismissing an application for an order nisi is interlocutory: see NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 377 at 378 [3].  Accordingly, leave to appeal is required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth).  The applicant has not obtained leave to appeal. 

3                     However, counsel for the first respondent informed the Court that the first respondent did not oppose this application being treated as an application for leave to appeal.  I have proceeded on that basis and will treat this application as an application for leave to appeal.

4                     An application for leave to appeal falls to be determined by reference to the principles established by the Full Court’s decision in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.  That case applied a two-limbed test to determine when leave to appeal from an interlocutory decision should be granted.  First, the decision below must be attended with sufficient doubt to warrant its being reconsidered by this Court; secondly, substantial injustice must be demonstrated if leave were to be refused, supposing the decision to be wrong: at 398.

5                     The principal submission made on behalf of the first respondent was that the applicant has not satisfied the first of these requirements.  That is, the first respondent submitted that the Federal Magistrate’s decision is not attended with sufficient doubt as to warrant its reconsideration by this Court.

history of the proceedings

6                     It is convenient to note the origins of this proceeding.  The applicant filed an application in the High Court for an order nisi on 21 April 2003, which was remitted to the Federal Court by Heydon J on 25 August 2003.  The matter was remitted to the Federal Magistrates Court by Emmett J on 5 August 2005.

7                     By the time the matter came to be heard by Scarlett FM on 16 January 2006, the applicant had filed what purported to be an amended application under the Migration Act 1958 (Cth) (‘the Act’) with reference to r 44.05 of the Federal Magistrates Court Rules 2001 (Cth).  Scarlett FM dealt with the grounds raised by the amended application, assuming they were applicable.

8                     In the Federal Magistrates Court, the first respondent submitted that the proceeding should be dismissed as an abuse of process under r 13.10(c) of the Federal Magistrates Court Rules.  Although Scarlett FM said that the prior proceedings could not be overlooked, his Honour addressed the merits of the application.  The application was thus dismissed by Scarlett FM on its merits.  I also propose to consider the merits of the application. 

background

9                     The applicant is a citizen of Bangladesh, who arrived in Australia on the last occasion (having previously visited) on 29 December 1999.  He lodged an application for a protection visa on 9 February 2000.  He claims to be a refugee because he feared persecution at the hands of criminals who had taken over his family business. 

10                  In his application for a protection visa, the applicant stated that he is of Punjabi ethnicity.  He previously travelled to Australia legally, using a passport issued in Kuala Lumpur, Malaysia, on 9 December 1998.  His Australian visa was issued in Kuala Lumpur on 5 February 1999.  From 1996 to 1999 the applicant lived in Malaysia and worked as a member of cabin crew for Malaysian Airlines.

11                  The facts concerning the applicant’s claims are fully set out in the Tribunal’s reasons for decision delivered on 13 August 2002.  I have not set out all of those facts in these reasons; I have referred to the relevant factual matters below.

12                  The Tribunal found that the applicant was a Bangladeshi national, having been issued with a Bangladeshi passport.  The applicant’s father moved to East Pakistan, now Bangladesh, from what was West Pakistan in 1969.  The applicant’s father remained in Bangladesh and took out Bangladeshi nationality and ran businesses in that country until his death in 1986.  The applicant was able to obtain an education, work in the family business, obtain a passport and travel in and out of Bangladesh on numerous occasions. 

13                  The Tribunal accepted that the applicant and his family had been subject to harassment from criminals in respect of their business on an ongoing basis since 1993 or 1994.  However the Tribunal did not accept the applicant’s claim that the main reason for this harassment was his family’s Pakistani background.  Rather, the Tribunal found that the essential and significant reason for these events was that criminals wanted to take control of his family’s assets. 

14                  The Tribunal’s reasons recount the origins of the dispute surrounding the applicant’s family business and the activities of the criminals in respect thereof.  In brief, a man called Mohammed Ali was given a 5 per cent share of the business.  Mohammed Ali was described by the applicant to the Tribunal as a local muscleman who was involved in organised crime.  Mohammed Ali and those associated with him managed to take over the family business of the applicant.  The applicant claimed, and the Tribunal accepted, that Mohammed Ali and his associates effectively stole control of the business by means of, inter alia, forged documents.  The applicant told the Tribunal that there has been ongoing litigation about who owns the business.  The applicant also claimed that Mohammed Ali and his colleagues took over his family business because the applicant and his family were of Pakistani background.  The applicant claimed that people of Pakistani background are hated in Bangladesh and treated very badly. 

15                  The Tribunal considered that:

‘Overall… the applicant’s evidence concerning what happened to his family strongly suggests that the essential and significant reason for the events was that criminals wanted to take control of his family’s assets.’

On this basis, and on the basis of matters which are set out below, the Tribunal was not satisfied that the essential and significant motivation for any harm the applicant has suffered in the past or fears in the future at the hands of Mohammed Ali and his associates is the applicant’s Pakistani background, or any other Convention reason.  Moreover, the Tribunal stated that it could be satisfied that the applicant otherwise has a well-founded fear of persecution because of his Pakistani origins. 

16                  The Federal Magistrate found that, having regard to the merits of the matter, the applicant had not made out a case of jurisdictional error by the Tribunal.  His Honour concluded that the application should be dismissed with costs. 

17                  The alleged grounds of jurisdictional error raised in this Court are the same grounds as those which were argued before Scarlett FM and rejected in the Federal Magistrates Court.  Accordingly, I shall turn immediately to the grounds raised by the applicant in this Court.

Issues

18                  In this Court, the applicant filed written submissions and made oral submissions at the hearing.  The applicant submitted that the Tribunal made various jurisdictional errors and claimed that the Federal Magistrate had erred in not recognising those jurisdictional errors and setting aside the decision of the Tribunal. 

seriousness of harm

19                  The first ground relied upon by the applicant is that the Tribunal made an error of law in deciding that the harm already suffered by the applicant and his family was not severe enough to amount to persecution.  The applicant alleged that this constituted an error of law on the basis that it was not reasonably open to the Tribunal to conclude that the harm suffered by the applicant was anything other than serious and, accordingly, the Tribunal should have found that the criteria in s 91R(1)(b) and (c) of the Act were satisfied.  This submission was primarily founded upon a passage in the Tribunal’s reasons which stated:

‘In my view, the harassment and discrimination suffered by the applicant and his family after the war did not reach a level of seriousness which could be characterised as persecution within the meaning of s 91R(1) of the Act.’

20                  Later, in its reasons for decision, the Tribunal accepted that the applicant had been harassed and assaulted on one occasion by Mohammed Ali or his associates.  The Tribunal also accepted that these events had contributed to the applicant’s fear that he could be targeted again if he returned to Bangladesh.  I do not read these later passages in the Tribunal’s reasons as suggesting that the Tribunal dismissed the assault and harassment that the applicant suffered as not serious. 

21                  The question whether conduct is sufficiently serious to amount to persecution is a factual matter for the Tribunal: see Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 at [50]-[53]; Minister for Immigration and Multicultural and Indigenous Affairs v Kord (2002) 125 FCR 68 at [3], [50]–[53].  On a fair reading of the Tribunal’s reasons, the reference to harassment and discrimination not reaching a sufficient level of seriousness to be characterised as persecution referred to the harassment and discrimination suffered by the applicant and his family after the war.  In my view, the Tribunal’s reference was not directed to the physical assault that the applicant suffered.  In any event, I am not satisfied that the Tribunal’s findings of fact were unreasonable or erroneous or not reasonably open to it.

22                  The Tribunal accepted that the applicant and his family had been harassed over a period of time, however the Tribunal considered that that harassment did not constitute persecution within the meaning of the Convention.  I do not consider that this ground reveals any error by the Tribunal, or, more particularly, that it raises a serious doubt as to the correctness of the decision of the Tribunal.

reason for persecution

23                  The second ground relied upon by the applicant is that the Tribunal applied the wrong test in applying s 91R(1)(a) of the Act.  The applicant submitted that the Tribunal found that the essential and significant motivation for the harm feared by the applicant was that criminals wanted to take control of his family’s assets.  According to the applicant, the Tribunal arrived at this conclusion erroneously by considering the ‘primary motivating factor’ in the actions taken by the criminals.  In substance, the applicant’s argument is that the expression ‘primary motivating factor’ departed from the language of the Act and led the Tribunal to address the wrong question, giving rise to a jurisdictional error: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. 

24                  The Tribunal’s reasons for decision ought not to be read in an over-technical or pedantic way.  They must be read fairly and in context.  The expression ‘primary motivating factor’ was used by the Tribunal on one occasion.  Elsewhere in its reasons, both before and afterwards, the Tribunal used the phrase ‘the essential and significant reason’ or ‘the essential and significant motivation’.  These expressions correctly reflect the test that is required in relation to s 91R(1)(a).  I agree with the submission made on behalf of the first respondent that when the various passages in the Tribunal’s reasons are considered together and in context, it becomes clear that the Tribunal applied the correct test.  In my opinion, there was no error in the Tribunal’s conclusion that the applicant’s evidence concerning what happened to his family strongly suggest that the essential and significant reason for these events was that criminals wanted to take control of his family’s assets. 

25                  This conclusion was reached by Scarlett FM and I agree with his Honour’s reasons. 

alleged complicity of the state of bangladesh

26                  The third ground raised by the applicant was that the Tribunal did not adequately consider whether or not the State of Bangladesh had tolerated, condoned or was complicit in the criminal activities of Mohammed Ali and his associates.  The applicant submitted that the Tribunal had therefore failed to deal with the integers of the applicant’s claim, thereby constituting a jurisdictional error: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259 [42]; W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 at [31]-[38]; SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 at [40].  The applicant contended that the criminal activities directed at his family were instigated, and were successful, because the criminals knew that the State would fail to offer protection to the applicant and his family due to their Pakistani ethnicity.  The applicant complained that there was evidence before the Tribunal of the State’s tolerance and complicity in the criminal activity perpetrated against his family and himself because of their ethnicity. 

27                  It is not entirely clear that the applicant’s claim of the State’s complicity in the criminal activities was raised, explicitly or implicitly, by the applicant before the Tribunal.  The extent of the claims relating to any tolerance or complicity in the criminal activities relied upon by the applicant appears to be that the criminals, on two occasions, paid the police to arrest the applicant but the applicant was not arrested on either occasion.

28                  More generally, the applicant contended that people of Pakistani background were hated and treated very badly in Bangladesh.  The applicant submitted that his family had to prove that the business assets belonged to them and were stolen through, inter alia, forged documentation.  There was, moreover, evidence that there had been ongoing litigation in Bangladesh about the ownership of the family business for some time. 

29                  The Federal Magistrate found that the applicant’s complaint that the State of Bangladesh had tolerated or been complicit in the harm done to him and his family had not been raised before the Tribunal, and it did not so obviously arise on the material before the Tribunal as to require the Tribunal’s consideration of it. 

30                  In this Court, counsel for the first respondent submitted that it was not implicit in the applicant’s claims before the Tribunal that any action or lack of action by the State had any connection with the applicant’s ethnic background.  In my view, this is a correct assessment of the material and submissions before the Tribunal.  Even if such a claim was implicit in the materials and argument that the applicant placed before the Tribunal, it was still open to the Tribunal to find, as it did, that it was not satisfied that there was any persecution for a Convention reason.

31                  In my opinion, the contention that the State of Bangladesh had shown tolerance or complicity towards the alleged criminal activity is not apparent on the evidence, or at least not in such a way as to connect it with a Convention reason for persecution.  I consider that there is, in this respect as well, no serious argument that the Tribunal or the Federal Magistrate fell into error. 

Avoidance of harm

32                  The fourth ground relied upon by the applicant was that the Tribunal wrongly failed to consider the chance of persecution in the future if the applicant were to return to Bangladesh.  In its reasons, the Tribunal stated that:

‘[i]f the applicant returned to Bangladesh and avoided going near his family’s business premises, the chance that Mohammed Ali and his associates would come looking for him is remote and insubstantial.’

33                  As counsel for the first respondent conceded, this statement is problematical: see Appellant S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1.  There is, therefore, substance in the applicant’s complaint that the Tribunal asked the wrong question by stating that the applicant could avoid persecution on his return to Bangladesh.  The Tribunal should have inquired into what may happen to the appellant if he returned to Bangladesh.  However, I do not regard this deficiency in the Tribunal’s reasons as providing a basis for granting leave to appeal.  The Tribunal determined the case adversely to the applicant on the basis that it was not satisfied that the essential and significant reason for any harm that the applicant has suffered in the past, or fears in the future, was for a Convention reason.  The Tribunal did not fall into error in reaching that conclusion. 

34                  I am satisfied that the Tribunal applied the right test and it was open on the evidence for the Tribunal to reach the conclusion it did.  That remains so, notwithstanding the error that the Tribunal made elsewhere in its reasons, by stating that the applicant could avoid harm if he returned to Bangladesh.  The application was rightly rejected on the independent basis that the harm in question, both actual and apprehended, was not essentially and significantly linked to any Convention reason. 

conclusion

35                  For these reasons, I consider that there is no sufficient doubt concerning the decision of the Federal Magistrate such as to warrant the grant of leave to appeal.  I have not found it necessary to deal with the contentions raised before the Federal Magistrate that the application was an abuse of process having regard to the previous proceedings. 

36                  Accordingly, the application for leave to appeal is dismissed and the applicant is to pay the first respondent’s costs.

Associate:

Dated:              24 May 2006