NAPU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1543

FEDERAL COURT OF AUSTRALIA

NAPU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1543 NAPU V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N588 OF 2003 BENNETT J 19 DECEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N588 OF 2003

BETWEEN: NAPU

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BENNETT J

DATE OF ORDER: 19 DECEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N588 OF 2003

BETWEEN: NAPU

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BENNETT J

DATE: 19 DECEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of Bangladesh who arrived in Australia on 17 October 2000. On 27 November 2000 he lodged an application for a protection (Class XA) visa. On 16 January 2001 a delegate of the respondent ('the Delegate') refused to grant the protection visa and on 13 February 2001 the applicant applied for a review of that decision by the Refugee Review Tribunal ('the Tribunal'). The applicant attended a hearing before the Tribunal on 24 March 2003 and on 31 March 2003 the Tribunal affirmed the decision of the Delegate not to grant a protection visa. This is an application made under s 39B of the Judiciary Act 1903 (Cth) in relation to the Tribunal's decision not to grant the applicant a protection visa.

The applicant's history 2 The applicant gave a history, initially before the Delegate and later before the Tribunal, which can be summarised as follows: · He is a sports journalist by profession. As such, he was able to identify corruption among sports officials and publish his findings in a newspaper. Those findings included the publication of the names of persons involved in corruption, specifically misappropriation of funds. · He has had an active involvement in politics over a substantial period of time, from his time as a student at the University of Dhaka, having been a supporter of the Jatiya Party and Mr Ershad, the President of that party and an ex-President of Bangladesh. He is still of the same political belief. · His active support of the Jatiya Party has resulted in serious detriment to his career, harassment, discrimination, intimidation and physical assault. However, he also told the Tribunal that he left the party in 1994 and, as he told the Tribunal, he had never had problems as a result of that involvement. · The Awami League, in power when he left Bangladesh, do not wish to be criticised and people 'murder, rape and hijack' under protection. He had written an article critical of the Awami League but the applicant had told the Tribunal that he had not experienced any problems because of this. · In October 2000, the applicant published articles alleging: (a) misappropriation of funds by officials of the Bangladesh Football Federation (published 6 October 2000); and (b) corruption within the 'Mohammadan' Sporting Club, targeting its General Secretary who is very influential both socially and politically (published 13 October 2000). · As a result of the publication of these articles ('the articles'), the applicant claimed that he was repeatedly threatened and members of his family were assaulted and his property was damaged by people that were, apparently, either sent by the Mohammadan Sporting Club or were members of a gang attached to the people who had misappropriated funds from the Bangladesh Football Federation. · He believes that 'I have every chance of being persecuted on my return back to Bangladesh because of my professional responsibilities and political belief' and that the influential people about whom he wrote will harm him. · He has been harassed, abused, threatened and physically assaulted. He approached the authorities in vain. The Government has failed to protect him and his peer journalists. · He fears that he will be attacked and killed by agents of the Bangladesh Football Federation or the Mohammedan Sporting Club if he returns to Bangladesh. · He came to Australia on 17 October 2000 to cover the Paralympic Games and did not return to Bangladesh at their conclusion. He lost his job when he did not return. · The situation when he left Bangladesh 'was completely against' him'because of his honesty. · Since leaving Bangladesh: (a) A warrant was issued for his arrest and police searched his home twice and asked questions of his family regarding his whereabouts. (b) Thugs came to his home and damaged some of his assets. His brother tried to file a case against them and was refused. (c) False cases were filed against him for defamation and firearm possession, he has been removed from his job and a warrant has been issued for his arrest. He claims this is because he (a) did not abide by the instructions of influential members of society; and (b) his political beliefs. · Violence in every walk of life in Bangladesh has been increasing day by day with bitter enmity between the political parties.

The Delegate's Decision 3 No supporting documentation or detail was provided to the Delegate to support the applicant's claims in the application. 4 The Delegate found that, even if he accepted that the applicant was a member of the Jatiya Party, the applicant had not made out a case demonstrating that his political profile was such to attract the attention of the authorities of the country. In relation to the applicant's claim that his active support of the Jatiya Party had been detrimental to his career, the Delegate noted that, on the applicant's own evidence, the applicant had advanced from sports writer to executive editor to sports editor with different publications and increasing salaries since he graduated. The Delegate accepted that the applicant was employed as a sports journalist for the Bangladesh newspaper 'The Daily Ajker Kagoj'. The Delegate considered that the applicant had been working in a responsible position with a responsible organisation and had been given a highly regarded assignment (the Paralympics) and as such found it implausible that the applicant would be suddenly and without cause or notice be removed from his position. 5 The Delegate was not satisfied that any harm that may come to the applicant as a result of publishing the articles would be for a Convention (the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967) reason. Even if the Delegate accepted that the applicant had published the articles claimed and that those he criticised are very influential and have threatened to harm him, the applicant provided no details to persuade the Delegate that the consequences of his actions were not in essence a private matter aimed at him as an individual. The Delegate found that any violence to which the applicant had been subjected due to his political activity was not selective or targeted to him as an individual. 6 Based on the country information, the Delegate was not satisfied that Bangladesh is unable to provide protection to the applicant. 7 In relation to the defamation and firearms cases filed against the applicant, the applicant did not claim that the laws of general application in Bangladesh do not include laws against libel and possession of firearms. In the event that the applicant had published articles claiming corruption, the Delegate thought it likely that those publicly accused would legally and properly lodge charges of defamation to defend themselves and there was no evidence of persecutory action against the applicant. The Delegate considered that the facts showed that this was a case of prosecution rather than persecution. In relation to the firearms charges, the Delegate was not persuaded that the applicant satisfactorily demonstrated that the firearm charges are without foundation and that the authorities are doing anything except rightfully attempting to protect the welfare of the State. 8 Accordingly, the Delegate was not satisfied that the applicant has a well founded fear of persecution and therefore did not turn his mind to the issue of whether the persecution was for a Convention reason.

The tribunal

Claims before the Tribunal 9 The applicant provided written submissions and a number of supporting documents to the Tribunal including: · English translations of the two articles written in October 2000. · A letter from the applicant to a police officer stating he had received telephone death threats after publishing the articles. · Police and court documents stating that the applicant had been charged with various offences relating to his involvement with an anti-government element and that a warrant had been issued for his arrest. One document described the applicant as a 'Bangladesh Nationalist Jobadal' leader. · A letter from his lawyer warning him not to return as he will face serious harassment from the police and his political opponents and may be killed if he returns home. · Various articles reporting violence against journalists in Bangladesh in support of a submission that journalists and their supporters were harassed, assaulted and threatened by the current BNP Government. · A letter from the General Secretary of the Bangladesh Sports Writers Association stating that the applicant is being attacked by persons who are very influential and powerful, was physically attacked 'sometimes' and it is feared that he may be killed and that the government of the day will not protect the applicant. 10 In relation to the article published on 6 October 2000, the applicant stated that he had obtained his information from opposition groups within the Bangladesh Football Federation but had not been given any concrete evidence. Neither he nor the people who had told him about the alleged corruption had gone to the authorities because they could not get any evidence. After the publication of this article, and before the publication of the next article, when the applicant next went to the Bangladesh Football Federation he was denied entry and told he would be tortured if he returned. When asked by the Tribunal if anything else had happened, the applicant initially stated that he had not gone back to the Bangladesh Football Federation. However, subsequently, he stated that he received at least 7 or 8 threatening phone calls. 11 In relation to the article published on 13 October 2000, the applicant explained that the Mohammedan Sporting Club was a private organisation but received money from the government as well as other sources. The applicant had been told by people attached to the club about the problem he reported in his article but had no concrete evidence of the wrong doing by those whom he had named and nobody had reported their alleged crimes to the authorities. After 13 October 2000, the applicant claimed that he had received a threatening phone call from someone associated with the Mohammedan Sporting Club which he reported to the police. 12 The applicant's submissions acknowledged and relied upon the assertion that political confrontations, which are violent at times, always dominate politics in Bangladesh.

The Tribunal's decision 13 The Tribunal's reasons were, in summary: · The applicant made no mention of the charges when asked why he feared returning to Bangladesh and the Tribunal did not believe that he would have forgotten a warrant issued for his arrest. The Tribunal did not accept that any cases, false or otherwise, had been filed against the applicant and believed that the documents provided in support of these claims were false. · The letter from his lawyer warns of risk of harm from political opponents, which the applicant does not claim but says nothing about the articles that the applicant wrote or the sporting groups he offended. · While the Tribunal accepted that the applicant may have been threatened and warned to cease writing articles containing accusations, his evidence on the subsequent problems was confused and contradictory and, the Tribunal believed, exaggerated. The Tribunal accepted that the applicant had published several articles critical of leading figures in the sporting world in Bangladesh but believed that the applicant had exaggerated the extent of these problems. · The Tribunal did not accept that the applicant is currently at risk of serious harm because of the articles. · Even if the Tribunal accepted a risk of harm because of the newspaper articles, it was clear from his evidence that threats were made because the people about whom he wrote (from both sides of politics) wanted to silence him or seek revenge but not because of his race, religion, nationality, membership of a particular social group or political opinion: not for a Convention reason. · The loss of his job was because he did not return from Australia, not for a Convention reason. The Tribunal accepted that the applicant had been expelled form the Dhaka Journalists Union in 1999 but did not accept that it was for a Convention reason. In any event, the applicant could seek other employment. 14 The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations and the Tribunal affirmed the Delegate's decision.

the application for review 15 The applicant applies to this Court for a review of the decision of the Tribunal on the following grounds: '(1) The Refugee Review Tribunal ("the RRT") constructively failed to exercise its jurisdiction under the Act in that it failed to determine the social group that the applicant belonged to, and in particular, whether he belonged to a social group of Bangladeshi journalists who had written articles critical of political groups or their supporters. (2) The RRT failed to give the applicant a hearing for the purposes of s425 of the Act as it did not consider his claim that he feared persecution as a member of a social group of Bangladeshi journalists who had written articles critical of political groups or their supporters. (3) The RRT breached the rules of natural justice as it did not consider his claim that he feared persecution as a member of a social group of Bangladeshi journalists who had written articles critical of political groups or their supporters. (4) The RRT constructively failed to exercise its jurisdiction as it failed to consider whether it was likely that the applicant would continue to write articles critical of the political groups or their supporters upon returning to Bangladesh. (5) The RRT constructively failed to exercise its jurisdiction as it failed to consider whether the restriction on the activity of the social group itself was persecutory in the sense that it would require the applicant, as a member of the social group, to retreat from any of the identifying features of the social group to which he belonged.'

The applicant's submissions 16 The applicant did not provide any written submissions. He appeared unrepresented at the hearing assisted by an interpreter and submitted the following: · He re-stated the facts with respect to the article that he wrote as a sports journalist and claimed to be a member of a particular social group, being journalists who report against lawlessness and wrongdoings of people and clubs. · When asked what was the impact of the change of government in Bangladesh, the applicant claimed that the people the he named in the article on the Mohammedan Sporting Club are more powerful at this moment as they are more closely connected to the current regime. · When asked why he could not go to the police in Bangladesh, the applicant stated that the police would not listen. · When asked to explain ground 4, the applicant spoke about factual findings.

The respondent's submissions 17 In summary, the respondent submitted: · At no time prior to his appeal to this Court did the applicant expressly claim persecution by reason of his membership of a particular social group. The applicant never put his case on the basis of harm to other journalists but on an individual basis only and because of the two articles written prior to his departure, rather as a member of a group. However, the respondent accepted that the Tribunal should not limit itself to the case articulated by the applicant where facts found by it, or not negated by its findings, might support an argument that the applicant is entitled to the protection of the Convention: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28; Minister for Immigration and Multicultural and Indigenous Affairs v VFAY [2003] FCAFC 191 at [97]. · The applicant made no claim before the Tribunal that he would be constrained on returning to Bangladesh by having to restrict his freedom of political expression as a journalist. Nor did he claim that he would suffer a restriction upon this right on account of his being a member of the social group of journalists who had criticised political parties. The matter was not raised as an issue for the Tribunal to determine as part of the applicant's claim and there was no evidence before the Tribunal as to the matter. · The objective evidence presented by the applicant was evidence with respect to journalists in Bangladesh in 2001, after the applicant departed that country. Further, the articles listed by the Tribunal as relied upon by the applicant were published in the two weeks before his departure. It was not part of the applicant's case that he suffered consequences from other articles that he wrote. This is relevant to the Tribunal finding that the applicant had suffered no harm prior to his departure. · The function of the Tribunal is to respond to the case that the applicant advances (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ('Dranichnikov') at [78] per Kirby J). There is no suggestion that the Tribunal failed to put to the applicant, clearly and unambiguously, the critical issues on which the application depended (WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 at [33]). The Tribunal put to the applicant the matters of concern to it. The Tribunal is not obliged to consider claims that have not been made. There was no denial of natural justice. · In view of the Tribunal's finding that the applicant's claims relating to threats were exaggerated and that his evidence generally about facing problems after writing the articles was confused and contradictory, there was no necessity for the Tribunal then to ask whether he faced a real chance of harm continuing if he were to continue to write the articles: Abebe v Commonwealth of Australia (1999) 197 CLR 510 per Gleeson CJ and McHugh J at [84]-[86]. · The Tribunal found that the applicant did not suffer any harm before his departure and made an adverse finding as to the applicant's credibility. This led to the Tribunal's conclusion that it did not accept that the applicant had a subjective fear of persecution. The Tribunal did not accept that the applicant had faced any harm in Bangladesh. As subjective fear of persecution, the second element of the test in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 ('Guo'), outlined below at [20], was not satisfied, it was submitted that it was not necessary to consider the third and fourth tests of Guo. The Tribunal's conclusion was a factual finding that was open to the Tribunal and based on an adverse finding as to the applicant's credibility. As such, it cannot be challenged as jurisdictional error. This is said to be in contrast to Dranichnikov, where the applicant's credibility was accepted, he was found to have a subjective fear and had clearly raised his membership of a particular social group. · As the question of membership of the claimed social group had not been raised and as the Tribunal put to the applicant the critical issues for its determination (and the contrary is not suggested), it is submitted there was no denial of natural justice.

decision 18 In order for the applicant to succeed, he must show that s 474 of the Migration Act 1958 (Cth) ('the Act') does not apply to the decision made by the Tribunal. As stated by the Full Court of the Federal Court in Applicant NAOB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 33 at [11], the effect of the High Court's decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 can be summarised as follows: 'In summary, the High Court held that s 474 insofar as it rendered final and conclusive a privative clause decision and protected it from challenge, only did so in respect of "decisions made under…[the] Act". Thus, decisions which involve a failure to exercise jurisdiction or involve an excess of the jurisdiction conferred by the Act are not, as a matter of statutory construction, decisions made under the Act and are therefore not privative clause decisions protected by s 474. Put shortly, s474 does not apply to decisions which involve jurisdictional error, and does not apply, in particular, to decisions which do not comply with the principles of natural justice'. 19 Section 36(2) of the Actprovides that a criterion for a protection visa is that the applicant for the visa is a non‑citizen in Australia to whom Australia has protection obligations under the Convention. Section 91R(2) of the Act provides that Article 1A(2) of the Convention does not apply in relation to persecution for one or more of the reasons mentioned in that Article, unless that reason is the essential and significant reason for the persecution; and the persecution involves serious harm to the person and systematic and discriminatory conduct. 20 The issues which the Tribunal is required to consider in order to determine whether the definition of 'refugee' in Article 1A(2) of the Convention is met were set out by the High Court in Guo at 570: '(1) the applicant must be outside his or her country of nationality; (2) the applicant must fear "persecution"; (3) the applicant must fear such persecution "for reasons of race, religion, nationality, membership of a particular social group or political opinion" ; and (4) the applicant must have a "well-founded" fear of persecution for one of the Convention reasons.' 21 The basis of the respondent's submissions is that the applicant did not articulate a claim before the Tribunal that he feared persecution as a member of the claimed social group. 22 There can be no challenge to the finding of fact by the Tribunal that the applicant had no subjective fear of persecution. That finding was open to the Tribunal on the facts as considered and found. If the respondent is correct and the issue of membership of the claimed social group was not raised or the facts as found by the Tribunal do not support such a claim, the appeal fails. 23 However, in my opinion, a reading of the Tribunal's decision demonstrates that the issue of membership of a particular social group, that is, Bangladeshi journalists who had written articles critical of political groups or their supporters ('the claimed social group') was raised before the Tribunal. 24 It is apparent from the recitation of the applicant's claims and evidence before the Tribunal that the Tribunal acknowledged the applicant's claim that 'he was one of a very few outspoken journalists in Bangladesh and his life was at risk'. What follows in the Tribunal's decision is a recitation of the applicant's stated activities in that professional capacity and the threats and assault to family and property that he said resulted. 25 The Tribunal then noted that the applicant also claimed to have been actively involved in politics as a supporter of the Jatiya Party and former President Ershad. The documents as summarised by the Tribunal included those related to violence against journalists and journalists who reported on illegal activities of government and autonomous bodies. The answers given by the applicant to questioning by the Tribunal made reference to articles he wrote as a journalist and problems that arose as a result, as well as his fears on a return to Bangladesh. 26 It was put to the applicant that the risk of harm was not for any of the reasons contained in the Convention. The applicant 'suggested that he or those who wished to harm him belonged to a particular social group'. The Tribunal accepted that 'members of the Bangladeshi media were sometimes victims of violence or harassment from the government and/or powerful individuals'. 27 Relevantly, the Tribunal concluded that, even if there were threats, it was because the people he had written about wanted to silence him or seek revenge and not because of his race, religion, nationality, membership of a particular social group or political opinion. In that regard, the Tribunal noted that an article critical of the Awami League caused him no problems and that he had criticised people from both the Awami League and the BNP. 28 Taken in context, the Tribunal did not fail to determine the claimed social group. It did consider his claim that he feared persecution as a member of the claimed social group. The Tribunal found, as a fact that was open to it, that there had been no persecution of the applicant as a member of that social group. 29 It was open to the Tribunal to reach findings as to the applicant's credibility, this being a function of the primary decision-maker, for which detailed reasons need not be given: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, 423 per McHugh J. The Tribunal's findings as to the credibility of the applicant involved questions of fact and degree and were considered conclusions, based on reasons: W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69]. It accepted some of his claims, but rejected some aspects of his claims as being exaggerated and found that documents he submitted were false. No error is apparent in these findings of the Tribunal. 30 In any event, as the Tribunal did not accept that the applicant had a subjective fear of persecution, the second element of the test in Guo was not satisfied. Consequently, it was not necessary to consider the third and fourth tests of Guo. The Tribunal's conclusion was a factual finding that was open to the Tribunal and based on an adverse finding as to the applicant's credibility and cannot be challenged as jurisdictional error. 31 The applicant provided the Tribunal with material before the hearing took place. The applicant took up the opportunity to attend the hearing and present evidence and argument. There is no suggestion that the Tribunal failed to raise plainly and unambiguously the critical issues on which the application depended. In particular, the Tribunal put to the applicant that it had difficulty in believing him, as his evidence was very confused and he appeared to be making some of it up on the spot. Having put to the applicant this and other matters which were of concern to it, the Tribunal was unable to be satisfied that Australia owed the applicant protection obligations. There is no basis on which it can be said that the Tribunal failed to comply with s 425 of the Act. 32 Accordingly, grounds one to three of the appeal fail. 33 As to the fourth ground of appeal, it raises a matter of factual speculation not supported by the facts found by the Tribunal. The Tribunal found, on the basis of the applicant's evidence, that he did not write any more articles about the Swimming Federation, he did not return to the Bangladesh Football Federation and that he had not written any articles since those of 6 and 13 October 2000. The applicant does not seem to have given any evidence that he intended to write articles critical of the political groups or their supporters upon returning to Bangladesh. The basis of his case was alleged harm arising from past writings about sporting organisations. His own evidence was that he did not experience any problems when writing articles critical of political groups, such as the Awami League. Given the finding that the applicant did not face any harm prior to his departure or now, there was no basis in the applicant's case for a finding that he faced a real chance of persecution on his return. In view of the Tribunal's factual findings, the Tribunal was not obliged to consider the range of possible activities in which the applicant might choose to engage. 34 The applicant did not claim before the Tribunal or Delegate that his freedom of expression would be restricted upon return to Bangladesh. He claimed that he would not be able to get a job as a journalist. The applicant did give evidence in respect of this inability but gave no evidence of an intention to continue to write critically of political groups or their supporters or whether the present circumstances would give rise to a need or desire to write critically of sporting organisations. The applicant did give evidence that he ceased writing when he was warned to do so. There is no further evidence as to why the applicant ceased writing. Therefore, there was no evidence before the Delegate or the Tribunal to support this claim. 35 This fourth ground of appeal fails. 36 No particulars of the fifth ground of appeal are given. The Tribunal found that the applicant lost his job because he did not return to Bangladesh from Australia to resume his duties and not for a Convention reason. It did not accept that he was unable to work as a journalist. It did not accept that there was a restriction on his activity within the claimed social group. The applicant did not make a case before the Tribunal that journalists generally are restricted in their activities with respect to the 'identifying features' of the claimed social group, nor was there a factual basis put forward with respect to the applicant himself. As was pointed out by Gummow and Heydon JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [58], the Tribunal was not obliged to prompt and stimulate an elaboration on which the applicant chose not to embark. In any event, the Tribunal did not accept that the applicant was banned from working in Bangladesh (if not in Dhaka) as a journalist.

conclusion 37 I can see no error in the decision of the Tribunal. I dismiss the application with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate: Dated: 19 December 2003 Applicant appeared in person

Counsel for the Respondent: M Allars

Solicitor for the Respondent: Clayton Utz

Date of Hearing: 29 September 2003

Date of Judgment: 19 December 2003